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The divorce of parents significantly affects the future fate of children. For a small child, the separation of mom and dad is a big stress. It’s even worse when they cannot peacefully agree on who the baby will live with and how the other parent will participate in his upbringing. The situation may be further complicated by the fact that the ex-spouse is trying to take the child away. What should a mother do in 2021 if her ex-husband took the child? – we’ll look at it in this article.
What does the law say?
The Family Code states that mother and father have equal rights in relation to their common children (Article 61). What is meant by parental rights? First of all, this is the right of a parent to raise a child, represent his interests before the state and other persons, communicate, live together, and provide financial support. In the event of a divorce, it is not entirely possible for one of the parents to fully exercise their rights, since the child remains to live with someone alone.
In Russia, the practice is that after a divorce, children remain in the care of the mother, and the father can see the child at an agreed time, communicate, and help him financially.
Parents make mutual decisions about where their children will live. But if there is a conflict between them and they cannot decide with whom the baby will live, the dispute is brought before the court. This body is authorized to decide with whom the child will be better and more comfortable.
Important: The court may leave the child in the care of the father if the mother is disadvantaged: she abuses alcohol, does not work, does not have housing or living conditions.
So, if a child stays with his mother, then his father has every right to communicate with him, see him, and take him home. Of course, the procedure for participation in raising the child must be agreed upon or determined by a court decision if the parents were unable to agree.
Therefore, the situation when the ex-husband took the child to his place is twofold: on the one hand, the father is not doing anything illegal, on the other hand, it is necessary to take into account the circumstances under which this happened.
Father kidnapped a child
Women are very emotional individuals. They are so worried about their child that they may often misjudge some of the actions of the baby’s father. For example, dad took the child to his place for the weekend and does not give it back. Mom immediately begins to think that he stole the child.
First of all, it is necessary to find out why the child has been with his father for a long time. Perhaps he fell ill and his father did not have time to report it. Or maybe the father took the child to grandma, etc. In this case, there can be no talk of any abduction if the father does not hold the child against his will.
If the ex-husband really kidnapped the child, took him to another city and the mother does not know about his whereabouts, then there is cause for concern. If the father does not get in touch, does not pick up the phone, then you should contact the police. In any case, the mother will take a statement to the police. Law enforcement officers are obliged to understand the situation.
The application must be accompanied by documents confirming that the baby lives with the mother. This may be a court decision or an agreement to determine the child’s place of residence, concluded by the parents during the divorce. It would not be superfluous to provide a certificate of family composition, which also indicates that the mother and child live together.
The father's actions in relation to the child cannot be qualified under Article 126 of the Criminal Code of the Russian Federation (kidnapping). In this case, there is a violation of a court decision or the terms of an agreement on determining the child’s place of residence.
If the parent was at one time deprived of parental rights, then he lost the legal connection with the child. Accordingly, what can be prosecuted for without permission is kidnapping under Article 126 of the Criminal Code.
Advice: If your ex-spouse threatens, blackmails, or manipulates a child over the phone, you should make an audio recording of the conversation. This can serve as evidence to the police.
The father took the child and does not give it to the mother, what should I do? Lawyer's answers
Current legislation provides that parents equally have the right to raise their children, take care of their health, physical, mental, spiritual and moral development. As a result, such behavior is completely lawful and it will not be possible to hold the spouse accountable or influence the spouse in any way, except when there is a possible threat to the life or health of a minor.
In the absence of an agreement, the dispute between the parents is resolved by the court, based on the interests of the children. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development.
Involve the media and social networks in your fight. But remember: this is already heavy artillery that can hit indiscriminately. Pointing accuracy is important here. First of all, it is important to exclude the possibility of lawsuits from the opponent. Avoid insults and slander, use only facts. The situation itself is already developing in your favor. You are a mother, a woman, the weaker sex. Tell everyone how you are fighting for your child, what intrigues they are plotting against you. Tell the world about this in simple human language. Contact the media editors, at least make a post on your wall on a social network. Believe me, many people will respond. Public outcry will attract the attention of the competent authorities to you and will serve as protection from dirty tricks on the part of your ex-husband.
You can find a complete list of recommendations for mothers and rules of life in a “state of siege” in the book “War for Children.” And remember: a bad peace is always better than a good quarrel. If there is even the slightest chance to reach an amicable agreement with the child’s father, without turning the conflict into an open confrontation phase, take this chance.
If you have reasonable fears that a minor may actually suffer morally or physically, for example, when the child is still very small and the father does not know how to care for him. The issue of the baby's living with the mother can be decided at the preliminary hearing. Additionally, you can turn to the guardianship authorities for help, and in certain situations they are even able to initiate a procedure for depriving parental rights if his actions conflict with existing legislation.
Having realized that the child is with his father, who, after several polite requests, categorically refuses to return him, try to calm down and restrain yourself from making rash decisions, which later in court may be interpreted not in your favor.
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Determining the child’s place of residence
Many parents, after a divorce, do not draw up any legal documents regarding the child’s place of residence. This issue is resolved by verbal agreement. Please note that this may lead to adverse consequences in the future.
For example, if a father took a child from kindergarten or school without the mother’s consent, then such an action is completely legal. On the simple grounds that he has equal rights with his mother. In addition, kindergarten teachers or teachers cannot know the details of the family life of their student’s parents; therefore, they cannot refuse to give the child to the legal parent.
It’s another matter if there is a document that establishes the order of raising a child. Thus, the court decision may determine the place of residence of the minor, the participation of the second parent in upbringing, namely: on what days the father can see the child, whether he can pick him up from educational institutions, whether the mother will be present when the father and the child meet. In accordance with this document, you can ask teachers not to give the child to the father if it clearly states that only the mother takes the child from the kindergarten or school.
[download url=”https://razvodguru.ru/download/mirovoe-soglashenie-o-poryadke-obshcheniya-s-rebenkom.doc” title=”Settlement agreement on determining the child’s place of residence and the procedure for communication (form)”]
Documents that will be required in court
If a husband wants to take the children after a divorce, he must prepare very seriously for the court hearing. The main thing is to collect, prepare and provide the necessary documentation. Its presence will significantly increase the chances of success. What documents are needed:
- Statement of claim if the husband is the initiator of the divorce procedure. It must indicate your desire to take the child and the reasons why the court should take your side.
- Documents indicating the income level of the former spouses.
- Acts of inspection of the living conditions of both husband and wife.
- Medical documents confirming that the wife has problems with alcohol, drugs, severe mental and other illnesses. Similar certificates documenting the fact that the husband has no such problems.
- Documents from other competent authorities, which record facts of the wife’s behavior that threaten the well-being and health of the child.
- Characteristics from the place of work and place of residence, both father and mother.
- Documents confirming the father’s ability to successfully raise minors (education, training courses, past parenting experience, etc.).
The husband must have all the conditions for the normal upbringing of the child
USEFUL INFORMATION: Absentia court decision on divorce and options for its cancellation
It is worth knowing that the court will make a decision based on the entire complex of facts, data and circumstances, both positive and negative. The husband must have all the conditions for the normal raising of a child (stable and high income, excellent living conditions), and must also have an impeccable positive reputation if he wants to count on success.
When preparing for trial, it is worth trying to collect as much information as possible to prove that the child’s presence with his mother will cause harm to the latter and pose a danger to his development and life. The data presented to the court must be reliable and official; dubious and false facts cannot be used, as this will lead to negative consequences.
Taking a child abroad without the mother's permission
In Russia, the law does not prohibit the departure of a minor citizen with one of the parents. This means that the father can take the child to any country without the mother's permission. This rule is spelled out in Art. 20 Federal Law No. 114 “On the procedure for leaving the Russian Federation and entering the Russian Federation.”
Attention: A permit for the export of minor children is required if they are accompanied not by a parent, but by another person (grandmother, grandfather, aunt, uncle, etc.). Consent is issued in the form of a notarial statement.
On the one hand, taking a child abroad by one parent is very convenient. Especially if the parents do not live together. There is no need to look for the other parent to obtain permission if the child urgently needs to be taken to another state for treatment, education or vacation.
On the other hand, if the relationship between the former spouses is difficult, one of them can take the baby away without any problems. However, there is a legal mechanism to protect the interests of the child in such a situation.
If the mother is worried that the father may take the child abroad, it is necessary to file a lawsuit in court for disagreement with the departure of the minor. This right is provided for in Art. 21 Federal Law No. 114. If there is a judicial act that has entered into legal force, the customs service will not allow the parent and child to pass. Thus, it will be impossible to leave the Russian Federation.
Interesting: When a citizen leaves with a child for permanent residence in a foreign country, the permission of the second parent will be required. The need to obtain such paper may be determined by the requirements of foreign authorities when processing entry documents.
What to do if your husband does not allow you to see your child
Hello, Oksana Sergeevna! The child’s right to communicate with his parent is provided for in paragraph 1 of Art. 55 of the Family Code of the Russian Federation, which states that a child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives. The dissolution of the parents' marriage, its recognition as invalid or the parents' separation do not affect the rights of the child. If the parents live separately, the child has the right to communicate with each of them. A child has the right to communicate with his parents also if they live in different states. Taking into account this norm and Art. 66 of the Family Code of the Russian Federation, parents must agree on the procedure for communication between the parent and the child. Since you cannot reach an agreement, first contact the guardianship authority at the place of registration (registration) of the child, and at the same time prepare a statement of claim to the court, either to determine the child’s place of residence with you, or to establish a procedure for communicating with the child. In both cases, the guardianship authority will be involved in the court proceedings, which will conduct an examination of the living conditions of both parties and give its opinion on the case. The court will take into account many other factors, such as the financial situation of the parties, the child’s attachment to each of the parents, etc., which needs to be discussed in more detail. The opinion of a child who has reached the age of 10 is heard in court and taken into account when making a decision.
I have a difficult situation with my ex-husband, namely, he prevents communication with the child, does not give me my imperfect son, there have been no legal proceedings regarding the determination of the child’s place of residence, the situation is complicated every day by threats. I don't even know what to do?
05 Apr 2021 lawbellex 1437
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Some nuances
Often the spouse, out of resentment, wants to annoy his ex-lover. And for this he uses such a method as manipulation with the help of a child. First of all, it is necessary to understand that personal squabbles between a man and a woman can lead to a child suffering. His physical and psychological health, mental comfort is the only thing that parents should care about.
To avoid situations where the father picks up the baby, takes him to another city, etc., it is better to establish good friendly relations with your ex-spouse. At the same time, it is still worth documenting the legal relationship regarding the upbringing and maintenance of the child. And in the event that the father may pose a danger to the baby, it is advisable to raise the issue of depriving him of parental rights.
