What to do if the surrogate mother took the child and does not give consent

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.

When he stays with his father

Quite often, a father’s desire to take his children away for upbringing has understandable reasons. The mother may not be of sound mind or have diseases that will interfere with the full development of the children.

It often happens that a father, after a court decision to leave the children with their mother, no longer sees them.

Despite the schedule of communication between the father and the child established by the court, the mother begins to interfere in every possible way with its implementation, hence the desire of the former head of the family to ensure that he remains with him in advance.

The child's residence can be determined with the father. This requires very strong evidence, according to which the court can side with the father.

Preparing this type of statement of claim is impossible without a qualified lawyer or attorney. There are such precedents, but a clear strategy and a comprehensive justification for the chosen legal position are needed.

You should start by filling out a petition to the guardianship and trusteeship authority, in which you indicate compelling reasons determining why the children should live with their father.

In other words, if you cannot reasonably convince the representatives of the specified service that the father will be their best choice, then the case can be considered doomed to failure.

To prove and strengthen the legal position, it will be necessary to collect documents indicating the fact of the father’s active participation in the lives of the children, as well as the possibility of their versatile upbringing.

For example:

bank receipts;
sales receipts;
testimony of other relatives and neighbors;
characteristics from the place of work;
confirmation of the availability of comfortable housing with an equipped sleeping area, as well as a recreation area, leisure time and various activities.

In any case, if there are normal living conditions with the mother, the court will lean in her direction, even if the conclusion of the guardianship and trusteeship authority is on the side of the other parent.

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.

“Please put it on record that I am grateful!”

Lyudmila: “Gelya tells me - mom, when I return, I will never leave you!
“Lyudmila laughs hoarsely and quickly wipes away her tears...” When we had already left, Lyudmila called after us: “And please put it into the protocol that I am very grateful to the foundation for its help!” In the “protocol” - because this is the most familiar document for a 47-year-old woman with two convictions. Thin, polite, Lyudmila is restrained to the point of tightness - talking about her ordeals, she allowed herself to cry a little only at the very end.

She lives in Vyazma, in a new house, she received an apartment for many years of work as a janitor. She still works as a janitor, she is no stranger to it - after all, she has no profession. True, once upon a time I worked in Podolsk “on tulips” - on a farm where they were grown, and today I remember it as a wonderful time, because there were flowers all around.

More than a year ago, Lyudmila was released from prison after her second sentence. The apartment is empty, bare walls, rough finishing. That’s why Lyudmila couldn’t immediately pick up her daughter after her release—it was still impossible to live in this apartment. Now it’s poor, but clean. The far corner of the only room is fenced off with a closet, behind which there is a sofa. There are children's toys and books on it.

“I set up a sofa for Angelina so that she could feel comfortable there.”

Angelina is the 11-year-old youngest daughter. Born in prison and living there with her mother until she was three and a half years old, she was sent to Lyudmila’s eldest daughter to await her mother’s release. I didn't wait.

“I come back and the child is gone, she’s in an orphanage.” My eldest couldn’t cope with her sister, or whatever happened, and sent her to the Shatalovsky orphanage just shortly before my release.

I never wanted Angelina to end up there, I myself grew up in a boarding school, there were 15 children in our family, we couldn’t feed them all.

My daughter feels bad there; she was taken to a psychiatric hospital several times, where she was stabbed with some terrible drugs, supposedly for “bad behavior.” I saw her in the hospital, I asked the doctor - what was the diagnosis? And they tell me - no, he’s just behaving badly.

Behaving badly means crying and screaming that she wants to go home, demanding to be let out. Is it bad behavior to want to go home?

A small fluffy cat is jumping around Lyudmila’s apartment. A woman, a tiny kitten, took her away from some teenagers who were torturing the animal. Angelina constantly asks her mother on the phone how Dymka is doing, saying that her family consists of a mother and a cat.

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.

Detective agency gives advice to mothers in the war for children

As in martial arts, the war for a child has its own weight categories. We are talking about the thickness of parental wallets. Disputes over a child's place of residence are rarely started by ordinary workers. A man with average earnings will quite agree to the role of “Sunday dad”, provided that the mother is completely adequate. As a rule, militant fathers have a powerful financial and administrative resource behind them. Your ex-spouse probably has the ability to hire the best lawyers, detectives, journalists and other necessary people. Such a father can easily bribe the police, guardianship authorities, not to mention the nanny or the child’s class teacher. It will not be difficult for him to annoy your loved ones, destroy your business, ruin your career, even hire hooligans to intimidate you. Understand: a financial resource in the war for a child is no longer just money. These are the cartridges that your ex-husband will not regret for you.

Most of the women who contact us share the same mistake. At first, they did not attach much importance to the ex-husband’s attempts to get a child. Mothers usually reason like this: “I am mentally healthy, not an alcoholic, not a drug addict. Who would dare take my child away from me?” According to the logic of these women, circumstances are in their favor - which means there is no need to spend money on a lawyer or go to court. But believe me, you should not underestimate your opponent and rely on Themis’s tradition of taking the woman’s side. Many mothers got burned because of this. Even a court decision made in your favor and entered into force is not yet a reason to relax. The ex-husband can simply violate this very decision by taking the child for himself without asking and then, for example, taking him abroad. And for this he will get practically nothing.

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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.

In what cases is the child’s wishes taken into account?

The wishes of the child himself must be taken into account, but only after he reaches the age of ten. When interviewing a child at a court hearing, the mandatory presence of a commission member from the guardianship and trusteeship committee is provided.

The child is asked questions that are not complex. Who does he love more? Who would you most like to live with and why?

Important! The guardianship and trusteeship body acts as a third party that does not make independent claims. Its sole task is to protect the interests of children in court proceedings.

The conclusion of the said civil service is the main evidence for the court, which is paid great attention to, since it has impressive legal “weight”.

The grandmother took the child and will not give it back

what to do if the guardianship authorities become interested because of false accusations? I have a 4 month old baby whose grandmother took him and won’t give him back. She slandered that I drink and my husband and I are arguing. and wrote to the guardianship authorities. but this is only from her words. I convinced some of my neighbors to say the same thing. but I'm not a drinker. except that my husband and I can afford a bottle of beer once every two weeks and the house is clean and there is good food in the refrigerator. We can afford delicacies. He says he will be deprived of his parental rights. and arrange guardianship. is this possible? and what to do? What should I be guided by and how should I behave? how to pick up a child? and how long to wait for the commission’s result. what if they believe grandma and not me?

Hello Anna! In accordance with Art. 63 of the RF IC, parents have a priority right to raise their children. This means that parents have the right to take their child away from other persons temporarily raising him at any time. Moreover, they pick it up physically, come and take them away to live at their place of residence. If for some reason you are deprived of this opportunity, then you have the right to file a claim to take the child away from the grandmother and return him to his mother. One of the parents has the right to file a claim to determine the place of residence of minor children. A grandmother, grandfather or any other relative will be recognized as an improper plaintiff if he files a claim on his own behalf to determine the child’s place of residence after the divorce or separation of his parents. A dispute about determining the place of residence of a minor child is permissible only between the child’s parents in the event of their separation and is not permissible between the child’s parent, who by virtue of the law has a priority right to raise his child, and the child’s grandmother or other relative. If you do not take actions aimed at returning the child, over time your inaction will be directed against you and may be regarded as evasion of parental responsibilities, which, by virtue of Art. 69 of the Family Code of the Russian Federation is the basis for deprivation of parental rights. In the event of deprivation of parental rights (which happens only in extreme cases, if the parents cannot provide evidence of care for the child and his financial support), the child may be placed under guardianship.

22 Apr 2021 polrostov 266

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