What does the law say?
The central norm in this case is Article 57 of the Family Code of the Russian Federation:
The child has the right to express his opinion when resolving any issue in the family that affects his interests
and to be heard in any judicial or administrative proceedings.
Taking into account the opinion of a child who has reached the age of ten years
, is obligatory, except in cases where it is contrary to his interests.
In cases provided for by this Code (Articles 59, 72, 132, 134, 136, 143, 145), the guardianship and trusteeship authorities or the court can make a decision only with the consent of the child
who has reached the age of ten years.
The article is formulated in such a way that any child has the right to express his opinion, but if the child is under 10 years old, then the court, at its own discretion, can take this opinion into account or not.
RF IC, Article 57. The child’s right to express his opinion
The child has the right to express his opinion when deciding any issue in the family that affects his interests, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests. In cases provided for by this Code (Articles 59, 72, 132, 134, 136, 143, 145), the guardianship and trusteeship authorities or the court can make a decision only with the consent of a child who has reached the age of ten years.
Commentary on Article 57 of the RF IC
Article 57 of the RF IC, giving a child the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings, shows that, despite complete dependence on parents, limited legal capacity, he recognizes each child as a full member of our society and, although not yet fully formed, as a separate person deserving respect.
At first glance, the norm of the commented article looks contradictory, establishing that it is mandatory to take into account the opinion of a child who has reached the age of 10, except in cases where this conflicts with his interests. It would seem that an opinion is always a direct expression of an individual’s interests, and who else but the individual himself, the bearer of certain needs and interests, can know about his needs better than anyone else? However, in reality there is no contradiction here. Firstly, by granting a child with limited legal capacity from the age of 6 years, the state shows that it does not yet trust the child to make decisions independently and express them in actions that have legal significance. After all, legal capacity presupposes the ability to understand the meaning of one’s actions, manage them and foresee their consequences, which becomes possible, according to sociological and psychological research, only upon reaching 18 years of age.
Secondly, establishing the norm of Art. 56 of the RF IC, that it is the parents who express and protect the rights and legitimate interests of the child, the state also shows that it does not yet trust the child to independently carry out such actions and puts the opinion of the parents, in general, above the opinion of the child himself.
Thirdly, the state does not proceed from the abstract absolute of the interests of the child when protecting his interests, but from the priority for him of generally recognized benefits, such as health, a full-fledged education, psychological comfort and material well-being. And, as we all know, in childhood, concepts of good can be significantly distorted under the influence of momentary desires.
Thus, this norm makes it clear that the state provides the child with the right to vote and, if his interests coincide with those that are socially recognized and necessary for him, parents (or persons replacing them) are obliged to take them into account. However, the last word still remains with them if the desires expressed by the child, representing his personal interests, do not correspond to generally accepted benefits.
It should also be noted that the obligation to take into account the opinion does not mean that in controversial situations it is necessary to completely accept the child’s position. Taking into account opinions means that parents must, to one degree or another, adjust their position taking into account the child’s opinion, i.e. come to some kind of compromise.
However, despite the fact that the last word in general does not rest with the child, but only his opinion is taken into account, there are cases in which the word of the child, provided he reaches the age of 10 years, is decisive (Articles 59, 72, 132, 134 , 136, 143, 145 of the commented Law).
These are cases such as:
- changing the child's first and last name;
- restoration of parents' parental rights;
- consent of the adopted child to adoption;
- changing the surname, name and patronymic of the adopted child;
- registration of adoptive parents as parents of an adopted child;
- resolving the issue of preserving for the child the first name, patronymic and last name assigned to him in connection with his adoption when the adoption is cancelled;
- resolving the issue of placing a child under guardianship or trusteeship;
- appointment of a guardian for a child who has reached the age of 10 years.
Comments on Article 57 of the RF IC, judicial practice of application
A child who has reached the age of ten years or is under the age of ten years, in order to find out his opinion, may be questioned by the court at a court hearing.
In paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 14, 2017 No. 44 “On the practice of application by courts of legislation in resolving disputes related to the protection of the rights and legitimate interests of a child in the event of an immediate threat to his life or health, as well as in the case of restriction or deprivation of parental rights" contains the following explanations:
When considering cases of restriction or deprivation of parental rights, cancellation of restrictions on parental rights or restoration of parental rights, as well as invalidation of an act of an executive body of a constituent entity of the Russian Federation or the head of a municipality on the removal of a child and on the return of the child to the family, courts should take into account the provisions of Article 12 of the Convention on the Rights of the Child and Article 57 of the RF IC, according to which the child has the right to freely express his opinion on all issues affecting his interests, as well as to be heard in the course of any judicial or administrative proceedings.
Taking into account the provisions of these norms, a child who has reached the age of ten years or is under the age of ten years (if the court comes to the conclusion that he is able to formulate his views on issues affecting his rights) may be questioned by the court directly at the court hearing in order to finding out his opinion on the issue under consideration. It should be taken into account that the decision to restore parental rights in relation to a child who has reached the age of ten years can be made by the court only with the consent of the child (Article 57, paragraph 4 of Article 72 of the RF IC).
The child’s opinion when prescribing a genetic examination
The Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2016) contains the following conclusion:
“In cases of challenging paternity, a genetic examination is ordered by the court, taking into account the opinion of children who have reached the age of 10 years”
For more details on the case, see the attachment.
Interviewing a child in court
In paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 N 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children” the following was stated.
“..If, when resolving a dispute related to the upbringing of children, the court comes to the conclusion that it is necessary to question a minor at a court hearing in order to find out his opinion on the issue under consideration (Article 57 of the RF IC), then the opinion of the guardianship and trusteeship authority about whether his presence in court would have an adverse effect on the child.
The survey should be carried out taking into account the age and development of the child in the presence of a teacher, in an environment that excludes the influence of interested parties on him.
When interviewing a child, the court needs to find out whether the child’s opinion is a consequence of the influence of one of the parents or other interested parties on him, whether he is aware of his own interests in expressing this opinion and how he justifies it, and similar circumstances.”
A child’s opinion on adoption in the Review of the RF Armed Forces:
The Supreme Court of the Russian Federation has repeatedly directed the courts to the fact that in order to consider adoption cases taking into account the interests of the child as much as possible, and also based on the provisions of Article 12 of the Convention on the Rights of the Child and Article 57 of the RF IC, the court should find out the child’s opinion on the issue of his adoption directly in a court hearing in all cases where the child has reached a sufficient degree of development and is therefore able to formulate his own views...
For more details, see: review of the Supreme Court of the Russian Federation, approved in 2015: “Compliance by the courts with the norms of Art. 273 Code of Civil Procedure of the Russian Federation. Taking into account the child’s opinion (Article 57 of the RF IC)”, as well as: review of the RF Supreme Court, approved in 2021: “Taking into account the child’s opinion during adoption (Article 57 of the RF IC), mandatory participation in the court hearing.”
A child's opinion about adoption. Minimum age of child
“..The Family Code of the Russian Federation does not indicate the minimum age from which a child has this right. The Convention on the Rights of the Child (Article 12) states that this right is granted to a child who is able to formulate his own views. Based on these norms, the court should find out the child’s opinion on the issue of his adoption directly at the court hearing in all cases when the child has reached a sufficient degree of development and is therefore able to formulate his own views, and not only when the child is fourteen years old. This approach will allow the adoption case to be considered as much as possible, taking into account the interests of the child in question.”
(“Review of the practice of consideration in 2012 by regional and equal courts of cases on the adoption of children by foreign citizens or stateless persons, as well as citizens of the Russian Federation permanently residing outside the territory of the Russian Federation,” approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013)
On what issues can a child express his or her position?
Judging by Art. 57 of the RF IC, a minor has every right to express his own position on any family issue that concerns his interests.
In addition, the child is required to be heard not only at the “family council”, but also in court. In this case, the type of proceedings does not matter - the opinion is taken into account both when parents divorce, and when restoring the rights of a parent, and when adopting.
However, the main issue, in the resolution of which the opinion of children is a significant factor, is still the determination of their place of residence.
How do courts apply the rule?
In judicial practice, there is an approach where a survey of a child under the age of 10 was conducted by employees of the guardianship and trusteeship authorities as part of an examination of living conditions and was reflected in the conclusion of the case.
1) Appeal ruling of the Moscow City Court dated March 10, 2015 in case No. 33-7216/2015; 2) Appeal ruling of the Moscow City Court dated November 14, 2017 in case No. 33-34754/2017
Since this procedure is not directly regulated for guardianship employees, there is a risk that the child may not be interviewed and his opinion may not be known.
How to interview a child under 10 years old?
If you want your child to express his opinion, you can submit a written request to the court. In this petition, ask the court to instruct guardianship officials to find out the child’s opinion regarding the subject of the dispute (place of residence, order of communication).
Recommendation. It is better to submit the petition as substantiated as possible, i.e. explain that the child, despite the fact that he has not yet reached 10 years of age, is well able to formulate his thoughts and is psychologically capable of answering such questions.
At what age is a child’s opinion taken into account during a divorce in court?
The opinion of minors, depending on their age, has different significance in court. Three age periods can be distinguished.
Opinion of a child under 10 years old
At this age, the child’s opinion can be taken into account in court, but this is not a mandatory requirement of the law. As a rule, the guardianship and trusteeship authorities talk with the child and, if necessary, submit a document to the court in writing, which records the minor’s answers to the specialist’s questions, prepared depending on the requirements stated by the parents in court and commensurate with the age of the child. In addition, when deciding in court issues affecting the interests of children, the guardianship and trusteeship authorities are required to prepare an inspection report on the living conditions (plaintiff and defendant) and a conclusion on the case. To do this, specialists go to the place of residence of each parent and, as a rule, communicate with children and adults who are raising them.
Also, the opinion of children can be clarified by teachers or educators of children's institutions at the place of study or stay of minors, school teachers, inspectors for minors, and experts during a comprehensive forensic psychological and psychiatric examination.
Even if children are outside the Russian Federation, they can express their opinions through other means of communication. At the court hearing, children can be heard via video conferencing.
Arbitrage practice
For example, a mother and children moved to Prague after a divorce. The father filed a claim in a Russian court to determine his son’s place of residence with him; the child was 5 years old at that time. The opinion of the boy and his older sister was clarified by the guardianship and trusteeship authorities through a telephone conversation.
The boy told him his name, how old he is, where and with whom he lives, how he sees his dad, what his sister does. He said that he likes to live with his mother, but he would also stay in Russia. He also reasoned that in the future everyone would live together as before, and said that he liked living in both the Czech Republic and Russia.
The older sister answered the specialist’s questions clearly and briefly; regarding the legal dispute, she said that the parents could decide for themselves and come to an agreement. This could be said and decided by everyone together. She indicated that it would be better for my brother to live with his mother.
The children’s opinion was formalized in two documents with the corresponding titles “Opinion of a minor on the issue of legal proceedings affecting the rights of a minor” and attached to the materials of the court case.
When resolving such issues, the court must necessarily find out the children’s attachment to each of their parents, brothers and sisters, the age of the child, the moral qualities of the parents, their working hours, living conditions and other significant circumstances. Read more in the article: Who do children stay with when their parents divorce?
Opinion of a child from 10 to 14 years old
Taking into account the opinion of a child who has reached the age of 10 is mandatory if this does not contradict his interests, otherwise the court decision may be canceled.
The Review of the practice of courts resolving disputes related to the upbringing of children dated July 20, 2011 describes in detail the most common mistakes of judges when making decisions affecting the interests of children. As it turned out, judges often do not find out the opinion of children over 10 years of age when parents enter into a settlement agreement on their place of residence, which contradicts Article 57 of the Family Code of the Russian Federation.
For example, by ruling of a district court judge, a settlement agreement was approved, which determined the place of residence of a 13-year-old daughter with her mother, and the place of residence of a 7-year-old son with his father. The court did not find out the girl’s opinion on this issue.
Sometimes, in practice, the opinion of a child who has reached the age of 10 is not heard in court, but is indicated in the conclusion of the guardianship and trusteeship authorities, in the absence of information in the case materials about which specialist, when and under what circumstances this opinion was clarified. This is also against the law.
The Supreme Court indicated that courts should examine whether a child's opinion is influenced by a parent or other interested party, whether the child is aware of his own interests in expressing that opinion, and how he justifies it.
The child’s opinion is not decisive when the court makes a decision.
For example, a city court made a decision to determine the place of residence of a minor daughter with her father, despite the fact that at the court hearing the girl explained that she would like to live with her mother. This decision was justified, firstly, by the fact that the desire to live with the mother was caused by the lack of control over her daughter on her part, the complete neglect of the child, which led to her antisocial behavior, the theft of cell phones at school. Secondly, at the mother’s place of residence, the minor did not even have a place to sleep or a place to prepare her homework. Thirdly, the court took into account the girl's adolescence and pointed out the importance of the child receiving care and proper supervision from her parents.
Opinion of a child after 14 years
At the age of 14, a child already has every right to independently defend his rights in court.
In accordance with Article 56 of the Family Code of the Russian Federation, in the event of a violation of the rights and legitimate interests of a child, in the event of non-fulfillment or improper fulfillment by parents of the duties of raising, educating a minor, or in the event of abuse of parental rights, the child, upon reaching the age of 14 years, has the right to independently go to court.
After turning 14, a child can independently choose who he wants to live with after his parents’ divorce, and this can even be third parties, such as grandparents. Despite the fact that parents have a priority right to the education and upbringing of their children over all other persons, in practice, the older generation is often involved in raising children (Article 63. Rights and responsibilities of parents in the upbringing and education of children).
After a child reaches 14 years of age, he has the right to independently demand in court to change his place of residence and the order of communication of the separately living parent with him.
The child’s opinion is reflected in the court’s decision.
A teenager's opinion during a divorce
According to Article 57 of the RF IC, a child 10 years of age and older has the opportunity to express preferences regarding further residence. The child’s decision is usually based on the following features:
- Attachment to father or mother. The level of closeness of a minor with his parents is determined on the basis of an examination carried out by guardianship officials and teachers. Authorized persons study in detail the attitude of children towards each of the family members and identify sincere affection.
- Educational image of spouses. Gentleness and permissiveness, as a rule, are the determining factors for the baby. However, these same qualities directly violate the interests of the teenager, which means the judge will not take them into account.
Despite the fact that, by law, a minor has the right to express his own preferences, the court will not take them into account unless it is proven that the teenager’s choice coincides with his interests. In other words, if the minor chooses to stay with his father, and the court considers that the mother would be the best option, then the child will be left with her.
Is the child’s opinion taken into account during a divorce through the registry office?
According to the norms of the RF IC, divorce in the registry office is possible only in the absence of children. Even if the spouses have no disputes, but there is a minor child, you need to go to court.
Another situation is possible - creating a family with a parent who has a child from a previous marriage. In fact, a spouse who is not biologically related to him has no rights to him (except for subsequent adoption). In this case, the opinion of the minor will not be taken into account in court, and the place of residence will not have to be determined - he will remain with his natural mother or father, even if he is strongly attached to his wife, from whom he is divorcing.
Are the opinions of children under 10 taken into account?
If a child is under 10 years of age and the parents are divorcing in court while simultaneously trying to resolve the issue of determining his place of residence with one of them, his opinion will not be fundamental. However, the courts still listen to the arguments of minors, but they are not invited to the hearings.
Representatives of the guardianship authorities can find out the child’s opinion when conducting an inspection of living conditions. At this time, the environment in which the parents live is studied and a conversation is held with the children. Everything is recorded in a document submitted to the court.
There is a second option - the court appoints a psychological examination on the initiative of one of the parents. During it, psychologists work with the child and find out which of the divorcing spouses he is more attached to.
Can the court refuse a divorce if the child is against it?
Often children try to “force” their parents to keep the family together, saying that they do not want them to divorce. However, the court cannot take into account the child’s opinion on divorce: according to Art. 16 of the RF IC, a marriage can be terminated at the request of one or both spouses.
The only case when the opinion of a minor over 10 years of age is taken into account without fail is when resolving the issue of leaving him with his mother or father simultaneously with the divorce process or after it.
Is it possible to determine a child’s place of residence without a trial?
Parents can avoid proceedings and draw up an agreement to determine the place of residence of their son or daughter (Article 65 of the RF IC). The absence of disagreements on this issue and the desire to resolve everything peacefully is enough.
Legal advice: the agreement does not require notarization, but it is better to have it drawn up by a notary. The presence of his seal and signature will significantly reduce the chances of challenge if problematic situations arise in the future.
Let's consider how to properly draw up an agreement and what is required for this.
Mandatory consideration of the child’s opinion
In Art. 57 of the IC of Russia indicates at what age the child’s opinion is taken into account when parents divorce in a mandatory manner - from 10 years.
That is, the position of a citizen interviewed in the courtroom, who is already 10 years old, will be a fundamental factor in making a decision on place of residence.
A minor who has not reached the age of 10 is also compulsorily interviewed, however, taking into account the opinion in this case is not necessary (paragraph 2, paragraph 4 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 44 of November 14, 2021 “On Practice...”). The court independently decides whether to take into account the point of view of a minor under 10 years old or not.
As a rule, the decision to take into account or not take into account the opinion of a child under 10 years of age is made by the court based on a subjective assessment. That is, if a minor citizen is already able to correctly and adequately form his positions and thoughts regarding the issue under consideration, most likely, his opinion will be taken into account.
From the age of 14, a minor can independently go to court. For example, if parents abuse their parental authority, suffer from alcoholism, drug addiction, or use physical (psychological) violence. Up to 14 years of age, a child can apply for protection to the guardianship authorities (paragraph 2, part 2, article 56 of the UK).
Not taking into account the opinion of a child who is 10 years old
As a general rule, if a minor citizen is over 10 years old, then his opinion must be taken into account. However, there is an exception to this.
Thus, if the point of view of a minor directly contradicts his legitimate interests, and this was revealed during the court hearing, then the court may deviate from the general rule and make a decision taking into account objective factors.
This provision of the law was introduced in order to limit the legal consequences of possible pressure exerted on a minor in order to change his opinion by a parent acting against the interests of the child.
Procedure for drawing up an agreement
To resolve the issue of a child’s residence by agreement, it is enough to follow several steps:
- Decide who the minor will stay with, what communication procedure to establish for the second parent living separately.
- Draw up two copies of the agreement, indicating all the details.
Sample agreement
The agreement must provide comprehensive information:
- FULL NAME. parties, passport details, residential address;
- Full name, date of birth of the minor, details of the certificate;
- The purpose of the document is to determine the place of residence with one of the parents (the specific spouse with whom the child remains is indicated);
- The procedure for exercising parental rights: when a party living separately can see a son or daughter, what rights does he have;
- Rights and obligations of the parties;
- Grounds for changing or terminating the agreement;
- Validity period of the document;
- Signatures of the parties.
The agreement is drawn up in two copies. One stays with the mother, the second with the father.
Documentation
To draw up an agreement, it is enough to have with you:
- Passports of both parents;
- Passport of a child over 14 years old;
- Birth certificate of a child under 14 years of age.
If the parties contact a notary, a receipt for payment of the notary fee will be required.
State duty
When notarizing an agreement, it is not the state duty that is paid, but the notarial fee established by Art. 22.1 “Fundamentals of legislation on notaries.” You will have to pay 500 rubles for certification of the document.
Note! The price includes only the certificate of agreement. If parents want a notary to draw it up from scratch, they will have to pay an additional 5-7,000 rubles. The exact price of the service is set independently by the notary chambers of each region.
Can a child influence a parent's decision to divorce?
Every minor has the right to live and be raised in a family (Part 2 of Article 54 of the Family Code). Parents are obliged to take into account his position when making a decision, all on the basis of the same article. 57 SK.
Unfortunately, even if a minor citizen over the age of 10 wants to save the family, but the parents have firmly decided to separate, his opinion will still be taken into account when considering the issue of divorce, but this will not in any way affect the divorce process. That is, the spouses will still be divorced in the manner established by Art. 22 and 23 IC of the Russian Federation.
At what age can a child choose who to live with?
The answer to the question at what age in 2020-2021 can a child decide who to live with - with mom or dad - if the parents are divorced, is clear: only from the age of 18. Before this age, the child’s opinion is only taken into account (sometimes without fail), but it is not decisive. This is quite logical, because Russian legislation does not give a minor full legal capacity. The child may not be aware of his interests or may interpret them incorrectly.
At what age is a child’s opinion taken into account? In accordance with Art. 57 IC RF, from 10 years. However, this rule is very relative. Thus, the court cannot ignore the level of development of the child. It all depends on the specific circumstances and evidence provided by the parties. In addition, it matters how the court evaluates this evidence, because the judge has the right by law to his own inner conviction, since it is impossible to objectively evaluate family relationships. Including in the presence of an examination, which cannot automatically determine the court’s decision.
There are cases in practice when the court takes into account the opinion of an 8 or 9 year old child, but sees the influence of parents on a 12 or 13 year old child.
Examination to establish a child's attachment
A psychological examination, which helps determine the child’s attitude towards both parents, is carried out by a psychologist who interviews the child:
- Which parent spends more time with the child?
- What are your child’s favorite games and how does he spend his leisure time with his family?
- Does he attend sections and who exactly is involved in his physical and spiritual education?
- Is there aggression in the family and from which parent is it manifested?
- What methods of punishment are used?
- How does the child relate to each parent individually and to both together?
- Which parent misses you more in their absence?
- Which second-degree relatives take part in raising the child: from the mother’s or the father’s side? How does the child relate to each of them?
- Who is the child’s authority figure in the family circle?
- Are there problems with alcohol in the family, and what is the child’s attitude towards this?
- Do parents exert pressure and impose their opinion on the child regarding the place of residence?
In conclusion, the psychologist draws a conclusion regarding the psychotype of the child himself, as well as his ability to adequately accept the situation and express his own opinion in relation to both parents.
Some data may be falsified when one of the parents forces the child to take their side and present false information. This usually manifests itself in confusion of testimony, as well as expression of thoughts in a verbal form that is not typical for a child of his age.
If the court has doubts about the examination, a repeat procedure may be ordered.
