Commentary on the article Judicial practice Comments 1. Parental rights cannot be exercised in conflict with the interests of children. Ensuring the interests of children should be the main concern of their parents.
When exercising parental rights, parents do not have the right to cause harm to the physical and mental health of children or their moral development.
Methods of raising children must exclude neglectful, cruel, rude, degrading treatment, insult or exploitation of children. ConsultantPlus: note. On the deprivation and limitation of parental rights, see Articles 69 and 73 of this document. Parents who exercise parental rights to the detriment of the rights and interests of children are liable in the manner prescribed by law.
2. All issues related to the upbringing and education of children are resolved by parents by mutual consent based on the interests of the children and taking into account the opinions of the children. Parents (one of them), if there are disagreements between them, have the right to apply for resolution of these disagreements to the guardianship and trusteeship authority or to the court.
3. The place of residence of children in the event of separation of parents is established by agreement of the parents.
In the absence of an agreement, the dispute between the parents is resolved by the court based on the interests of the children and taking into account the opinions 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 (occupation, work schedule of the parents , financial and marital status of parents, etc.).
At the request of the parents (one of them), in the manner established by civil procedural legislation, and taking into account the requirements of paragraph two of this paragraph, the court, with the obligatory participation of the guardianship and trusteeship authority, has the right to determine the place of residence of children for the period before the court decision to determine their place enters into legal force residence.
(paragraph introduced by Federal Law dated 04.05.2011 N 98-FZ)
4. When exercising parental rights, parents (persons replacing them) have the right to assist them in providing the family with medical, psychological, pedagogical, legal, and social assistance.
The conditions and procedure for providing assistance in providing this assistance are determined by the legislation of the Russian Federation on social services.
(Clause 4 introduced by Federal Law dated July 2, 2013 N 167-FZ)
Commentary to Art. 65 IC RF
1. The exercise of a right is understood as the realization of the possibilities of certain behavior that constitute one or another subjective right. It includes the ability to behave in a certain way, to demand appropriate behavior from other subjects of civil law, and, in necessary cases, to seek protection from the relevant government bodies. Refusal to exercise the right does not entail termination of the right, except in cases provided for by law.
The exercise of the right can be carried out either by the authorized person himself or by his representative. It can consist of committing a single action or a series of actions, as well as abstaining from action.
The legislation enshrines the principle of unhindered exercise of subjective rights. However, when exercising a right, one must not violate the rights of other people. This principle also applies to family rights.
The requirement for the inadmissibility of violating the rights of other citizens is due to the fact that the rights of various subjects in family relationships are closely intertwined. Therefore, when exercising their rights, the subject must be aware that other persons (including other family members) may have similar or similar rights that are recognized and protected by law. Similar norms are in the Universal Declaration of Human Rights and the International Covenant of December 16, 1966 “On Civil and Political Rights”.
As follows from paragraph 1 of the commented article, if parental rights are exercised in conflict with the interests of the child or parents cause harm to the health and moral development of children, this entails liability provided for in a number of branches of law. So, parents can be:
a) deprived of parental rights (Article 69 of the Family Code);
b) punished administratively (Article 5.35 of the Administrative Code);
c) brought to criminal liability (Article 156 of the Criminal Code).
For deprivation and limitation of parental rights, see the comments to Articles 69 and 73.
2. In many cases, spouses may have different views on how children should be raised. When parents exercise their rights and responsibilities, disputes of various kinds may arise regarding the upbringing of children. This is due to the fact that the exercise of parental rights is carried out directly by each of the parents, based on various social and economic factors (such as education, upbringing, financial security, health status, belonging to a certain social class, etc.).
Paragraph 2 of the commented article contains the rule according to which the authorities that consider disputes arising between parents are the guardianship and trusteeship authorities and the court. In this case, you can go straight to court, bypassing the stage of consideration of the case by the guardianship and trusteeship authority. However, it is obvious that the court, when considering the case, will involve the guardianship and trusteeship authority to participate in the case.
The commented point indicates the need to take into account the opinions of children. This rule is a concretization of the idea contained in paragraph 1 of Art. 13 of the Convention on the Rights of the Child, which states: “The child has the right to freely express his or her views.”
The guardianship and trusteeship authorities, having familiarized themselves with the conflict situation, can give their recommendations, which can be either oral or written. However, these recommendations are not binding. As for the consideration of the case by the court, the court’s competence does not include resolving disputes of a purely pedagogical nature, since it is authorized to consider only questions about the child’s place of residence and the procedure for the exercise of parental rights by a parent living separately from the child.
3. As already noted, situations are possible when the child’s parents live separately. This is possible both in case of divorce and in cases where the child’s parents are formally married but do not live together.
In such cases, parents must decide for themselves which parent the child will live with. However, if an agreement cannot be reached, the issue is resolved by the court. A dispute over determining a child’s place of residence can be considered by the court before the dissolution of the parents’ marriage, during a divorce (in divorce proceedings) or after the termination of the marriage.
In some cases, after the divorce, parents continue to live in the same living space due to the impossibility of finding another living space. In such cases, the court must refrain from considering the case on its merits.
Disputes about a child’s place of residence can be considered more than once, since the conditions for raising a child may change depending on various circumstances (the state of health of the parent and child, the possibility of caring for him, the appearance of a stepfather (stepmother), etc.).
In this regard, paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 No. 10 “On the application by courts of legislation in resolving disputes related to the upbringing of children” defines the criteria that the court should be guided by when resolving such disputes: a) the interests of the child; b) mandatory consideration of the opinion of a child who has reached the age of ten years, provided that this does not contradict his interests (clause 3 of article 65, article 57 of the RF IC); c) the age of the child; d) the child’s attachment to each of the parents, brothers and sisters, and other family members; e) moral and other personal qualities of parents; f) the relationship existing between each parent and the child; g) the possibility of creating conditions for the child’s upbringing and development (taking into account the type of activity and work schedule of the parents, their financial and marital status, bearing in mind that the mere advantage in the financial and living situation of one of the parents is not an absolute basis for satisfying the requirements this parent); h) other circumstances characterizing the situation that has developed in the place of residence of one of the parents. The court may also take into account other circumstances, for example, which parent shows more care and attention to the child, the absence or presence of bad habits and behavioral deviations in the parents, etc.
Obviously, one should come to the conclusion that the place where the child is registered has no legal significance at the time of consideration of the dispute, since the child can be registered at the place of residence of either parent.
In paragraph 3 of the commented article, a reference is made to the norms of civil procedural legislation. We are talking, in particular, about clause 6.1 of Art. 152 of the Code of Civil Procedure of the Russian Federation, according to which, when considering disputes about children at the request of parents (one of the parents) in a preliminary court hearing, the court, with the obligatory participation of the guardianship and trusteeship authority, has the right to determine the place of residence of children and (or) the procedure for the exercise of parental rights for the period before entering into legal the force of a court decision. On these issues, a determination is made if there is a positive conclusion from the guardianship and trusteeship authority and with the obligatory consideration of the children’s opinions. If there are circumstances indicating that a change in the actual place of residence of children for the period before the entry into force of the relevant court decision is contrary to the interests of the children, the court determines the place of residence of the children for the period before the entry into force of the court decision to determine their place of residence is the actual place of residence of the children.
Particular attention should be paid to the last paragraph of paragraph 3 of the commented article, which was added by Federal Law of May 4, 2011 N 98-FZ. The essence of the innovations is that even before considering the case on its merits, the court, with the obligatory participation of the guardianship and trusteeship authority, has the right to determine the place of residence of children for the period before the court decision on determining their place of residence enters into legal force.
The presence of such an innovation is due to the fact that recently there have been a number of cases where one of the parents (usually the child’s father) created obstacles for the other parent in communicating with the child before a court decision was made on which parent the child would be with. In some cases, the child was simply hidden, and in others, the guards simply did not allow the other parent into the house where the child was.
(extraction)
III. Resolving disputes related to raising children
4. In response to requirements to determine the place of residence of children when parents live separately, for the purpose of a comprehensive and complete study of evidence and circumstances of the case, the court appoints an examination to diagnose intra-family relations.
Disputes of this kind between parents are resolved by the court, taking into account the opinion of the child who has reached the age of ten years.
R. (father of minor children) filed a lawsuit against E. (mother of minor children) to determine the place of residence of children D. and N., exemption from paying alimony for the children, and imposing the obligation on the defendant to hand over the children to the plaintiff.
E. did not recognize the claims and filed a counterclaim against R., in which she asked to determine the place of residence of the children with her.
As established by the court and confirmed by evidence in the case, the marriage between E. and R. was terminated on May 21, 2011 based on the decision of the magistrate. From the marriage, the parties have two minor children, D. and N. By a court order dated January 22, 2013, alimony was collected from R. in favor of E. for the maintenance of children D. and N.
R. and E. live separately, minor children D. and N. lived with their father from September 2013 to June 2014.
In accordance with the inspection report on living conditions dated June 27, 2014, at his place of residence, R. lives with his wife T. and four minor children (three sons and daughter T.) in a two-room apartment with a total area of 41.7 square meters. m. Children have a separate room with sleeping places, two tables for doing homework, a computer, a printer, a wardrobe for children's clothes, and a large number of toys. D. studies in a comprehensive school, attends the taekwondo section, N. is a kindergarten student.
According to the inspection report on living conditions dated June 30, 2014, at E.’s place of residence, at the time of the inspection, she lives with minor children in a two-room apartment. The apartment has the necessary furniture for living; children are allocated a separate room of 16 sq. m. m, where there are sleeping places for children, a table for studying, a TV, a computer, toys, books, etc. At E.’s place of residence, the necessary conditions have been created for the residence of minor children.
Resolving the dispute and determining the place of residence of minor children with their father, the court of first instance, guided by Art. 61 and 65 of the Family Code of the Russian Federation (hereinafter referred to as the Family Code of the Russian Federation), proceeded from the fact that since September 2013, the children lived and were raised with their father, who created the appropriate conditions for their upbringing, development and education, and the children had a familiar social circle. In addition, the court took into account the conclusion of the social protection authority, according to which the place of residence of minors D. and N. can be determined by the place of residence of their father R.
The appellate court also agreed with the conclusions of the first instance court.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the court rulings in the case, as taken with a significant violation of the norms of substantive and procedural law, and sent the case for a new trial to the court of first instance, indicating, among other things, the following.
Clause 1 of Art. Article 3 of the Convention on the Rights of the Child states that in all actions concerning children, whether taken by public or private social welfare institutions, courts, administrative bodies or legislative bodies, the best interests of the child shall be a primary consideration.
According to the explanations set out in paragraphs. 5, 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 N 10 “On the application by courts of legislation in resolving disputes related to the upbringing of children”, when deciding on the place of residence of a minor child when parents live separately, one should take into account in addition to those indicated in paragraph 3 of Art. 65 of the RF IC circumstances the real ability of the parent to ensure the proper upbringing of the child, the nature of the existing relationship between the parent and the child, the child’s attachment to the persons with whom he is, other circumstances characterizing the situation that has developed in the place of residence of each of the parents.
In accordance with Part 2 of Art. 56 of the Code of Civil Procedure of the Russian Federation, the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.
In this case, regarding the demands of the parents to determine the place of residence of the children, one of the legally significant and subject to proof circumstances, taking into account the applicable rules of substantive law, was to clarify the question of which parent (mother or father) would most fully correspond to the interests of the children.
Based on the provisions of Art. 67, , 195 - 198 of the Code of Civil Procedure of the Russian Federation, the court's conclusions about facts of legal significance for the case should not be general and abstract; they must be indicated in a court ruling in a convincing manner with references to regulatory legal acts and evidence that meet the requirements of relevance and admissibility ( Articles 59, 60 Code of Civil Procedure of the Russian Federation). Otherwise, the objectives and meaning of the proceedings established by Art. 2 of the named code.
The assessment of evidence and the reflection of its results in a court decision are a manifestation of the discretionary powers of the court necessary for the administration of justice, arising from the principle of independence of the judiciary, which, however, does not imply the possibility of the court evaluating evidence arbitrarily and in contradiction with the law.
These requirements of the law were not met by the courts of first and appellate instances. Having listed the parties' arguments and evidence, the court did not reflect in the decision the reasons why some evidence was accepted as a means of substantiating the court's conclusions, while other evidence was rejected, and the reasons why some evidence was given preference over others, that is, the court's decision cannot be called motivated.
The court did not take into account that when considering a case, it is obliged to examine on the merits all the factual circumstances and does not have the right to limit itself to establishing formal conditions for the application of the norm, otherwise it would lead to the fact that the right to judicial protection, enshrined in Part 1 of Art. 46 of the Constitution of the Russian Federation would be significantly disadvantaged.
When determining the place of residence of minor children as the place of residence of the plaintiff, the court of first instance referred to the conclusion of the competent authority, according to which, due to the fact that the children lived and were raised by the defendant since September 2003 and they were provided with appropriate conditions for their upbringing, development and education, it is possible for minors to live children with their father.
Meanwhile, the case materials contain conclusions regarding minors D. and N., drawn up by the director of a municipal budgetary institution - a center for psychological and pedagogical support for minors V., who is an educational psychologist, from which it follows that boys have a more trusting relationship with their mother and have a negative attitude towards both R. himself and his new family, and do not want to live with them.
The court was critical of the conclusion of the social protection authority, according to which the necessary conditions for the residence of children have been created at the place of residence of E. and who are recommended to leave the children with their mother, while at the place of residence of R. the appropriate conditions for the residence of four children have not been created, since the size The room allocated for children is 12 square meters. m, which does not meet the standards.
As established by the court and reflected in the report on the survey of living conditions carried out at the place of residence of R. (father of minor children), R. lives with his wife T., children D., N., A. and K. in a two-room apartment shared area 41.7 sq. m, living area 21.8 sq. m., 1/2 of the share of this apartment belongs to T. Those living in one of the rooms with an area of 12 sq. m. m four children are of different sexes.
According to Art. 12 of the Convention on the Rights of the Child, a child who is capable of forming his own views must be ensured the right to express those views freely in all matters affecting him, the views of the child being given due weight in accordance with the age and maturity of the child. To this end, the child shall, in particular, be given the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or appropriate authority, in a manner provided for by the procedural rules of national law.
As stated in Art. 57 of the RF IC, a child has 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. 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 the cases provided for in Art. 59, , 132, 134, 136, 143, 145 of the said code, 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. At the same time, the child’s opinion about which parent he wants to live with is, as a rule, revealed by the guardianship and trusteeship authorities, drawing up reports of inspection of living conditions and corresponding conclusions. In addition, the child’s opinion is also revealed by teachers or educators of child care institutions at the child’s place of study or location, school social teachers, and juvenile affairs inspectors.
Meanwhile, when deciding on the preference of minors D. and N. to live with the plaintiff, the court, in violation of the above rules of law, did not take into account the desire of the eldest son of the former spouses to live with his mother at her place of residence.
Having been questioned at the court hearing, minor D. consistently asserted his desire to live with his mother. The boy indicated that he liked living at his mother’s place of residence more; he made new friends with whom he walked and visited, and attended the sports section. According to the child, he wants to study at a school located in the city, his mother does homework with him, goes for walks, buys clothes and toys.
Teacher-psychologist V., interviewed during the consideration of the case by the court of first instance, explained that minor D. expressed a desire to live with his mother, which was also reflected in the psychological and pedagogical examination of the child dated June 30, 2014.
According to principle 6 of the Declaration of the Rights of the Child, adopted by Resolution 1386 (XIV) of the UN General Assembly of November 20, 1959, a child needs love and understanding for the full and harmonious development of his personality. He should, whenever possible, grow up under the care and responsibility of his parents and in any case in an atmosphere of love and moral and material security; A young child must not, except in exceptional circumstances, be separated from his mother. Meanwhile, the court did not establish or indicate such exceptional circumstances of separation from the mother of minors D. and N. when deciding the issue of the children’s place of residence with their father.
In addition to the above, when determining the place of residence of a child with one of the parents, legally significant circumstances that influence the correct resolution of this type of dispute are: one of the parents showing greater care and attention to the child; social behavior of parents; the moral and psychological situation that has developed in the place of residence of each of the parents; the opportunity to receive medical care in a timely manner; the presence or absence of parents of another family; the child’s usual social circle (friends, caregivers, teachers); the child’s attachment not only to parents, brothers and sisters, but also to grandparents living with them in the same family, the proximity of the place of residence of relatives (grandparents, brothers, sisters, etc.), who can really help the parent, with who remains to live with the child in his upbringing; the convenience of the location of educational institutions, sports clubs and additional education institutions that the child attends, and the possibility of each parent creating conditions for attending such additional classes; purpose of filing a claim.
When establishing certain circumstances that require special knowledge, the court appoints an examination to diagnose intra-family relationships and the relationship of the child with each of the parents, to identify the psychological characteristics of each of the parents and the child, for a psychological analysis of the situation as a whole (family conflict), to determine the presence of or lack of psychological influence on the child from one of the parents. For these purposes, the courts, in particular, should order forensic psychological, forensic psychiatric, as well as complex forensic examinations (psychological-psychiatric, psychological-pedagogical, psychological-valeological, socio-psychological).
These issues were not raised by the court for discussion and were not examined, and the conclusion of the guardianship and trusteeship authority, on the basis of which it was concluded that the children’s residence with their father corresponded to their interests, was taken into account without taking into account all legally significant circumstances in the case.
Determination N 45-KG15-3
Judicial practice under Article 65 of the RF IC:
Decision of the Supreme Court: Determination No. 2-КГ15-7 dated June 16, 2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 5-КГ16-89 of 08/09/2016 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 5-КГ16-76 of 06/07/2016 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 5-КГ15-17 of March 31, 2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination N 77-КГ14-11 of 02/24/2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 2-КГ13-9 of 10/08/2013 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 5-КГ15-190 of 12/22/2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 4-КГ13-36 of 02/11/2014 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. APL15-354 dated September 15, 2015 Board of Appeal, appeal
Decision of the Supreme Court: Determination N 46-КГ15-14 dated 09/01/2015 Judicial Collegium for Civil Cases, cassation
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