At what age can a child choose which parent to live with during a divorce?

Child's right to vote

The place of residence of a minor, according to Russian family law, is the place of residence of his parents or guardians.
Therefore, one of the main questions that arises upon the divorce of spouses who have children is the determination of their future place of residence. In the event of a dispute about the future place of residence, the court takes into account the interests of minors and their opinion. According to Art. The wishes of a child over 10 years of age must be taken into account in court, unless this is contrary to his interests. However, the decision should not be based only on his opinion: the final determination of the place of residence is made based on the interests of the children. Teenagers who have reached the age of 14 are required to be heard in court on the issue of further residence.

In addition, they have the right to independently file a statement of claim to change their place of residence in accordance with paragraph. Photo by pixabay. According to paragraph. Therefore, in the event of divorce, the preferred method of deciding with whom the child will live is an agreement between the spouses. If it is impossible to reach such an agreement, the dispute about the place of residence of the child after the divorce of the mother and father is considered in the district court. The main factors that influence the determination of further place of residence are:.

Thus, the opinion of a minor is only one of the factors on which the decision about who he will live with will be based. The court can take into account his wishes by conducting a survey with the help of a psychologist and guardianship authorities before the hearing, and also listen to the child himself. The court must take into account the opinion of children over 10 years of age when deciding with whom they will live. However, their presence at the meeting is not mandatory.

First of all, guardianship authorities and psychologists determine whether participation in the hearing will harm the minor. To find out the children's opinion about their place of residence and the degree of their attachment to their mother and father, a psychological examination may be prescribed. Its results are presented during the hearing. If the presence of a child in court is necessary, according to Art. The children's wishes may be the deciding factor in determining their future residence, but in some cases the child's judgment may be at odds with his or her safety.

For example, if the divorce occurs due to domestic violence, it is dangerous for children to live with someone who has shown aggression. The place of residence of a minor who has not reached the age of 16 is recognized as the place of residence of his parents or guardians, according to clause. Upon reaching 14 years of age, he has the right to independently choose with whom to live. If at the time of the divorce proceedings the children have reached the age of fourteen years, then in the absence of an agreement between the parents on the place of their further residence, in accordance with paragraph.

A teenager who has reached the age of 14 can live and be registered separately from his parents, subject to their consent and the consent of the person in whose territory the child will live. It is believed that minors over 14 years of age are mature enough to live separately from their parents, therefore, during the trial, they may submit a petition to determine the place of residence of the teenager with a third party.

In this case, the wish regarding which parent to live with will be decisive. Of course, according to paragraph. However, situations often arise when other relatives, for example, grandparents, are directly involved in raising and caring for the child.

Therefore, a teenager who has reached the age of 14 has the right to apply to the guardianship authorities with a request to appoint a guardian for him, indicating a specific person in accordance with paragraph.

Despite the fact that the judgment of children who have reached the age of ten must be taken into account in one way or another when determining their place of further residence, this factor cannot be decisive. The court decides with whom the minor will live, primarily based on his interests. The court, listening to the child’s opinion about his future place of residence, takes into account that the desire may be based on pity for the parent or the gentleness of one spouse in choosing methods of education.

Therefore, a court decision may be made contrary to the wishes expressed by the minor. An important, but not the only indicator, is the material security of the spouses. The court will also pay attention to the ability to devote the necessary time to parenting, for example, to the work schedule of each spouse.

An equally important circumstance will be the moral qualities of the parents and other factors. An agreement between spouses on the place of residence of their children after divorce speeds up the divorce process and also reduces the negative impact of divorce on the child’s psyche. Despite the fact that the desire of a minor is an important factor in determining his future place of residence, the court will definitely invite the parents to independently decide with whom he will live after the divorce and enter into a settlement agreement.

The child’s right to express his or her opinion

Thus, the child can choose who to live with when he reaches summer age. If a dispute arises regarding the child’s place of residence, it should be remembered that mom and dad have equal rights to raise their child. Disputes concerning the procedure and methods of parental participation in raising children, as well as the place of residence of children, are resolved with the involvement of the guardianship and trusteeship authority or in court.

How can a child's opinion influence the outcome?

Let us recall that children under fourteen years of age can express their opinion regarding the determination of their place of residence with one of the parents, but this factor is not the key one. If there is attachment to the parent, but there are no conditions for further cohabitation, or there is a threat to the child’s life, the court makes a decision in favor of the other parent. First of all, the state takes care of the child, protecting and protecting his future life. Personal opinion is put into the background, and the provisions of the psychological examination are considered in several stages.

Adolescents have the right to independently determine their future place of residence. In this case, their desire comes to the fore and is key. Moreover, if a teenager himself applies to the court about the need to establish his own place of residence, which is extremely necessary in the absence of conditions and parental responsibility, he has the right to live with a third party if the latter consents. This could be a grandmother, aunt, uncle, or an outsider who agrees to bear full responsibility for the child.

Is the child's opinion taken into account in a divorce?

According to paragraph 2 of Art. 65 of the Family Code of the Russian Federation, all issues related to the upbringing of children are resolved by mutual consent of the parents. Therefore, in the event of a divorce, the preferred way to decide with whom the child will live is by agreement between the spouses .

If it is impossible to reach such an agreement, the dispute about the place of residence of the child after the divorce of the mother and father is considered in the district court . According to paragraph 3 of Art. 65 of the RF IC, this issue is resolved based on the interests of the child and taking into account his opinion . The main factors that influence the determination of further place of residence are:

• Attachment to mother, father, brothers, sisters and other family members. The degree of closeness of the child with family members is determined by guardianship officials and teachers. Observing behavior and finding out his attitude towards his parents as a couple, and towards each individual, can reveal which of the family members he is most attached to.
• Moral qualities of mother and father. The psychologist and guardianship authorities take into account the education, profession, and positive characteristics of each spouse. Particular attention is paid to the fact of abuse of alcoholic beverages or drugs.
• Child's age . Judicial practice shows that in the vast majority of cases a child under three years of age is left with his mother, as he needs constant care and concern. The place of residence of children over this age can be determined by the place of residence of the father.
• The opportunity to create conditions for education and development . The court takes into account the work schedule of each parent and the time they are able to devote to their children. For example, if a father works on a rotational basis, he is not able to fully raise his child.
• Financial and marital status of each spouse. The court takes into account the income level of each parent, which can be confirmed by an appropriate certificate from the place of work, and the living conditions of the mother and father. An equally important factor will be the presence of relatives who will be able to raise children during the absence of a parent, therefore, often in judicial practice, the child’s place of residence is determined with the parent who has already created a new family.

Thus, the opinion of the minor is only one of the factors on which the decision about who he will live with will be based. The court can take into account his wishes by conducting a survey with the help of a psychologist and guardianship authorities before the hearing, and also listen to the child himself.

In what cases are the interests of the child affected in a divorce?

The dissolution of a marriage between parents affects the interests of the child in terms of determining their future place of residence. In cases where the father and mother have agreed peacefully and drawn up an agreement about the children, no questions arise - they are free, by their own consent, to determine the future fate of their common minor children.

But if they had to go to court to clarify this issue, then to clarify the interests of the minor, the court involves the guardianship authorities as a participant in the court hearing.

In order to determine with whom the child will live after the marriage between the father and mother is dissolved, the court must take into account the following circumstances:

• to whom the child feels the most affection;
• which parent will be able to provide a standard of living for the minor that is no different from the previous one;
• the role of a parent in raising a child;
• moral and moral qualities of citizens, their way of life, etc.

After studying the circumstances of the case and hearing witnesses, the court requires the submission of a conclusion from the guardianship authority, which will reflect the child’s living conditions, the nature of the relationship with the parents, etc.

Important! The guardianship authorities, on instructions from the court, can conduct an inspection of living conditions both at the place of residence of the father and at the place of residence of the mother. The decisive factor, under equal conditions of material support, will be the child’s attachment to each of the parents.

Based on all the above aspects, the court makes a decision in which it determines who will get the minor child after the divorce.

What interests of children are taken into account?

Ideally, even before the trial, the parents agree on who the child will stay with, not only among themselves, but also taking into account his wishes. If there are several children, there are additional difficulties, because in addition to the desire to not lose touch with mom and dad, they will want to be close to their brothers and sisters.

Before filing a claim, parents need to decide:

• where the child will live (if he is 14 years old, he chooses himself, and these can be close relatives);
• providing for a minor (alimony, its amount, frequency of payments, indexation).

It will be a huge advantage for parents in court if they have drawn up an agreement on these issues with a notary in advance. In a document, in writing and with the confirmation of a lawyer, the decision will become legal. During a divorce there will be less hassle, arguments and re-examination of the case. In any case, the judge, relying on paragraph 2 of Art. 24 and paragraph 1 of Art. 65 of the RF IC , will request a decision during a court hearing, possibly with the involvement of PLO employees.

What factors are considered first (according to clause 3 of Article 65 of the RF IC ):

• The child's attachment to mom and dad separately. A representative of the educational program and a psychologist will work with the child - strangers who cannot always take into account the peculiarities of the child’s behavior and certainly do not feel it subconsciously, like their own mother or father. It is important for parents to remember that even a teenager will not be able to analyze the consequences of his answers. The time factor may play a role, his momentary grievances against his mother or father.
• Age. Children under 3 years old almost always stay with their mother. This is necessary from a psychological and physiological point of view, since the father is not always savvy in matters of child hygiene and certainly will not be able to breastfeed. Children who have crossed the 10-year mark and can stay at home alone and perform the necessary household skills often stay with their father.
• Lifestyle and moral qualities of parents. The court and the PLO focus on the health and character traits of the father and mother. In 100% of cases, the child will not be left with an alcoholic or drug addict who is registered at a psychoneurological dispensary. Although in these cases there are exceptions - when an abusive mother promises to recover and return to a healthy lifestyle in order to keep the child close to her. Or a child who has reached the age of 10 categorically refuses to leave an antisocial parent.
• Material support (housing conditions). The court may be on the side of the parent whose living conditions are better and whose income is higher, as confirmed by certificates. Representatives of the PLO, who previously inspected the home of the father and mother, also give an opinion.
• Family status. Sometimes ex-spouses plan to start a new family in a short time after a divorce. Of course, there is a possibility of conflicts with a stepmother or stepfather, which will definitely be taken into account in court. In addition, the child will not be left with the father if the latter works 24 hours a day and does not have relatives (grandmothers, sisters, etc.) who can look after the children.
• Work and rest schedule. It takes into account how fully one of the parents will be able to raise the child, devote personal time to him, invest energy in his development, and take part in his interests.

Thus, in addition to the age at which children’s opinions are taken into account when parents divorce , father and mother should take note that the court considers all circumstances comprehensively. Be sure to listen to the opinions of witnesses on both sides, read the conclusion of the PLO on the living conditions of the child. In cases where the forces are equal, it is the opinion of a child over 10 years old that can play a decisive role in making the final decision.

Is the child’s opinion taken into account in the registry office during a divorce?

Since divorce through the registry office is allowed only in the absence of joint children under 18 years of age, the opinion of minors during a divorce cannot be taken into account in the registry office.

If there are children of any age under 18, the spouses must dissolve the marriage in the courts.

The only exception may be unilateral divorce in the following cases:

• incapacity of one of the spouses established by a court decision that has entered into force;
• unknown disappearance, also confirmed by a judicial act;
• serving an actual prison sentence of 3 years or more.

In these cases, the registry office can dissolve the marriage at the request of one spouse with children, but the opinion of the child in such a divorce is also not found out in the registry office and does not matter.

Identifying the interests of a minor

If the former spouses have not entered into an agreement on the distribution of responsibilities and rights to communicate with the child, the guardianship and trusteeship authorities come into play. The authorities find out:

• living conditions of both parties;
• material support for former spouses;
• schedule;
• lifestyle of the parties to the divorce proceedings;
• the presence or absence of bad habits or addictions.

When receiving information, guardianship authorities have the right to oblige spouses to undergo a series of examinations to identify psychological abnormalities and abilities to independently raise a child.

At what age can a child choose who to live with during a divorce?

It may be that the child is very attached to his mother, but is offended by her because of some little thing and in this way is trying to take revenge on her, not realizing the consequences for himself. That is why all the circumstances of the case are taken into account, and if they outweigh the expressed desire, then the decision will be made contrary to such desire. The Law on Legal Capacity and Guardianship contains the rule that until the age of six years, it is best to be with the mother.

When determining this rule, the legislator proceeded from the fact that at this age a child needs the closest care and supervision, and therefore his natural place is next to his mother. To force the mother to release the child, you can file a lawsuit. Another possibility is to contact the guardianship and trusteeship authority (local administration), but the decisions of this body will be of an advisory nature. If a mother abuses parental rights, treats the child poorly, does not care for him, you can sue for deprivation or restriction of parental rights (Articles 69-71, 73-75 of the Family Code of the Russian Federation) (of course, if the child is at least somewhat attached to mother, it is better not to do this) - then the child, by court decision, is transferred to the father.

If you have any doubts and questions regarding the procedure for ascertaining the child’s opinion and resolving a dispute about his place of residence, it is strongly recommended that you contact an experienced lawyer. Our specialists are ready to advise you online right now and completely free of charge. Competent legal assistance will help to avoid possible problems and protect the interests of children in court.

Child's age: how important is it for parents?

article 57 of the RF IC is devoted to the rights of minors in expressing their own opinions . It is a priori believed that from the age of 10 a child can analyze the general situation in the family and predict the development of events at the child level. But there is one condition - his own opinion should not contradict his own interests.

When the child turns:

• 10 years is the age when children are asked who they want to stay with. This often happens at a court hearing and parents must understand that in addition to the very fact of the parents’ divorce, a public choice is very difficult for the child. Often the court will listen, but the verdict will be exactly the opposite. This happens if the child wanted to stay with his father, but one of the reasons for divorce is cruelty, violence towards the mother;
• 14 years old is the age for obtaining a passport and making your first independent decisions. Before this, according to paragraph 2 of Art. 20 of the Civil Code of the Russian Federation, a child is required to live at the place of residence of his father or mother (by court), but after that the children can choose for themselves. If at the time of divorce the child is 14 years old, he is brought to the court hearing as a full member of society. But according to paragraph 2 of Art. 56 of the RF IC, he himself can initiate a claim against himself, his rights, and his decision can be primary for the court.

In the latter case, contrary to the rules established by paragraph 1 of Art. 63 of the RF IC , where the care of the child lies entirely with the parents, other relatives can also take care of the children. Children, having reached the age of 14, can say that they prefer to stay with their grandmothers, uncles, older sisters, etc. The court does not have the right to refuse them this desire, subject to the consent of the father and mother, normal living conditions and good support from both parents.

Child's opinion at the registry office

Since divorce through the registry office is possible only if there are no joint children under 18 years of age, the child’s opinion cannot be taken into account in these governing bodies. Divorce proceedings in the presence of minor children are carried out exclusively through the court, which determines all the rights and obligations of both parties.

Child's opinion in court

The child’s wishes must be objective, which is established by the competent authorities. Factors ensuring the safety of the minor and the material and moral qualities of the parents come to the fore.

Upon reaching the age of fourteen, the teenager decides which parent he will live with. In this case, his opinion is the main one when making a final decision by the authority. Young children who cannot objectively assess a situation are unable to express their opinions correctly to the maximum benefit for their future lives.

Therefore, the task of determining the place of residence is assigned to the court, where all aspects of the lives of both parents are taken into account.

Agreement on determining the place of residence of children

This agreement is concluded in order to clearly indicate with whom the children will live after the divorce. The advantages of concluding an agreement are that there is no need to go to court or involve third parties to solve the problem. In addition, having agreements regarding children will significantly speed up the divorce process.

The text of the agreement must contain the following terms:

1. Date and place of document preparation.
2. Information about the parties (data of mother and father: full name, date of birth, address).
3. Information about children (full name, date of birth).
4. Child's residential address.
5. Indication of the parent with whom the children will live.
6. Rights and obligations of the parties (notification in case of change of residence, participation of the second parent in upbringing).
7. Duration of the contract.
8. Signatures.

Attention: The agreement is valid until the children reach adulthood, unless another period is specified. The agreement terminates earlier if the child acquires full legal capacity before the age of 18 (marriage, birth of a child to a minor, running a business independently).

The agreement can specify the procedure for raising the child by the second parent. For example, the frequency of meetings with the baby, certain days and hours, the possibility of joint recreation, accommodation during the holidays, traveling abroad.

At what age does a child’s opinion take into account in a divorce?

During the trial, the plaintiff or defendant has the right to file a petition for a psychological examination of the child’s attachments to his parents. In this case, an expert is involved in the case, who, within the time established by the court, conducts conversations with the child, gives the child tests and asks questions of interest. Meetings with a specialist are carried out both in the presence of one or both parents, and without their presence.

Based on the research, the psychologist draws conclusions about the child’s attachment to each of the parents, declares what decision would be the best solution for the child and draws up the corresponding expert opinion.

If necessary, a psychologist may be called to a court hearing to testify and explain the expert opinion.

The participation of a psychologist is mandatory if the statement of claim to determine the place of residence of a child concerns a minor who has reached the age of 10 years but has mental disabilities. The opinion of such a child is not taken into account; a psychologist, as well as guardianship and trusteeship authorities, are involved in the process.

The child’s psychological attachment to his mother and father is taken into account, as well as the parents’ ability to provide proper care for their special child.

The point of view of a child aged 10 years and older

Before directly hearing the wishes of the child, specialists invited by the court check:

• whether the decision has been imposed;
• sincerity of choice;
• the child's ability to make such decisions.

To consolidate the teenager’s wishes regarding further residence, the latter must undergo a psychological and pedagogical examination, confirming the fact that the decision was conscious.

From the age of 14, a child has the right to choose with whom to live

The place of residence of a minor under 14 years of age is the place of residence of his parents or guardians, in accordance with paragraph 2 of Art. 20 Code of Civil Procedure of the Russian Federation. Upon reaching 14 years of age, he has the right to independently choose with whom to live. If at the time of the divorce proceedings the children have reached the age of fourteen years, then in the absence of an agreement between the parents on the place of their further residence, in accordance with paragraph 3 of Art. 37 of the Code of Civil Procedure of the Russian Federation, the court is obliged to involve the teenager in participation in the hearing.

A teenager who has reached the age of 14 can live and be registered separately from his parents , subject to their consent and the consent of the person in whose territory the child will live. It is believed that minors over 14 years of age are mature enough to live separately from their parents, therefore, during the trial, they may submit a petition to determine the place of residence of the teenager with a third party.

According to paragraph 2 of Art. 56 of the RF IC, a teenager who has reached the age of fourteen has the right to apply for the protection of his interests to the guardianship authorities or the court. In this case, the wish regarding which parent to live with will be decisive.

Of course, according to paragraph 1 of Art. 63 of the RF IC, parents have a preferential right to raise their children. However, situations often arise when other relatives (for example, grandparents) are directly involved in raising and caring for the child. Therefore, a teenager who has reached the age of 14 has the right to apply to the guardianship authorities with a request to appoint a guardian for him, indicating a specific person (according to paragraph 3 of Article 13 of the Law of April 24, 2008 No. 48-FZ “On Guardianship and Trusteeship”).

A court decision that is contrary to the child's wishes

The court takes into account which parent the child wants to live with, but his desire is not a fundamental and decisive factor, since the court proceeds, first of all, from the interests of the child (according to paragraph 3 of Article 65 of the RF IC). The desire expressed by a child to live with mom or dad can be based, for example, on pity, fear, compliance, or a preference for gentle parenting methods. Therefore, the final court decision, which is made taking into account all the circumstances of the case, may well contradict the child’s expressed desire.

Question My 12-year-old son said in court that he wants to live with his dad, I believe, due to minor domestic disagreements that have accumulated between us over the last difficult time for the whole family. The court ruled in favor of the father. The son's relationship with his father is smooth and restrained. I think after a while he will miss him a lot and want to come back. In this case, will we have to go through legal proceedings again?

Answer

For the issue of your son’s place of residence to be reconsidered, his desire alone is not enough. Try to resolve the issue through peaceful negotiations with the child's father. If you cannot reach an agreement, you will have to file a claim in court again. From the age of 14, the son will be able to independently decide with whom to live.

How to take your child's opinion into account

A PLO officer must be present at the trial, and even before the start, the judge is obliged to consult with him. This is necessary in order to make sure that the question of choosing a parent will not cause serious psychological trauma to the child. Children, due to their age, cannot understand why dad and mom should live separately; they do not know the difficulties in the relationship between parents, especially when they never argue (scandal) in the presence of children.

A small child (under 10 years old) is not required to be present at the divorce. The conversation takes place on neutral territory in a complacent atmosphere, in no way connected with the gloomy official courtrooms. Parents are also absent so that they cannot indirectly influence the outcome of the interview through manipulation.

The psychologist asks leading questions, never directly, but only conditionally neutral ones, but allowing one to understand to whom the child is personally drawn more. How does he assess the situation at home, does he have any reluctance to stay in a common house or does the child feel comfortable with his grandmother. According to paragraph 20 of the PP of the Supreme Court No. 10 of May 27, 1998, the court must establish how aware the child is of his own interests, what justifications he may have for choosing who to stay with - mom or dad.

The child stays with dad: is there a possibility?

Based on statistics, you can see that most often children stay with their mother, even if she does not work. The father can only rely on meetings with the child, and also take on responsibilities for his financial support in the form of alimony. But many men are ready to reserve the right to live together and raise a child. The main thing, at the same time, is not to think like a child, to soberly assess your capabilities.

Sometimes such decisions become a consequence of emotional instability and stress experienced. In order for the likelihood of the father living with the child to be higher, it is necessary to perform certain actions.

First, you should discuss with the mother issues related to the child’s residence. It is quite possible that a woman can give her consent to the cohabitation of a child and her husband. Especially if the father is ready to fully financially provide for the baby. If it is not possible to talk in person, then you can send your ex-wife a written request outlining your wishes, as well as justifications for why this is possible. The father can contact the guardianship authorities

If the father has serious evidence that the baby’s cohabitation with the mother can cause him any harm, then the authorities will side with the man, since they are interested in a better future for the baby. If the case does go to court, then attention should be paid to carefully selecting documentation and paying the state fee. The father must also take care of his official income, which should imply the ability to provide for the child. If we are not talking about young children, then the child’s opinion will also be taken into account when making a decision. But only if he has reached a conscious age

If the child really wants to live with his father, the court will listen to his words.

USEFUL INFORMATION: The concept of inheritance and rights of inheritance by law

A court verdict that goes against the child's wishes

Despite the fact that the judge is obliged to listen to the opinion of a minor who has reached the age of 10, often the court’s decision goes against the child’s wishes. Such situations occur if the child:

• expressed a desire to live with a spouse who has certain financial problems;
• makes a decision based on an imposed opinion;
• wants to stay with a spouse who has the worst moral qualities.

The determining factor in assigning a further place of residence for the court is the interests of the child. If one of the parents has the opportunity to provide for the child and devote proper time to his upbringing, and the other does not, then the court will definitely side with the wealthier party.

At what age does a child have the right to choose which parent to live with?

Federal Law of April 24, 2008 N 49-FZ) That is, you can try to determine the child’s place of residence with you, however, the chances are not so great. Firstly, she is a girl of puberty, BZ can insist that some issues are awkward for a girl and her dad to resolve (menstruation, issues of sex education and education, etc.).

Secondly, if they have been living in another city for a long time, there is a familiar circle there - school, sports (music, etc.) school, section, friends, etc. also my wife's relatives. Prepare in advance the expected schedule for communication between mother and daughter.

If you are financially better off, and also want alimony from your wife, and even force her to travel to the child at her own expense in another city, the court may consider this an abuse on your part. Therefore, it may only be worthwhile to demand the cancellation of alimony from you if the court decides to leave the child with you.

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:

1. Which parent spends more time with the child?
2. What are your child’s favorite games and how does he spend his leisure time with his family?
3. Does he attend sections and who exactly is involved in his physical and spiritual education?
4. Is there aggression in the family and from which parent is it manifested?
5. What methods of punishment are used?
6. How does the child relate to each parent individually and to both together?
7. Which parent misses you more in their absence?
8. 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?
9. Who is the child’s authority figure in the family circle?
10. Are there problems with alcohol in the family, and what is the child’s attitude towards this?
11. 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.

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.

What happens if a child is against divorce?

Divorce is a psychological trauma for a child. It is difficult for an unformed psyche to accept that further life will be spent with only one of the parents.

The main task of both parents is to maintain a healthy atmosphere that will help the child grow fully and form his own worldview.

The following tips and recommendations will help you do this:

1. Despite the fact that the mother or father has a grudge against each other, they should not show it in front of the child and insult each other in his presence.
2. When a new family member (stepfather or stepmother) appears, the child is not required to name and recognize them as a parent. It is important to prepare your child for such a major change and tell him about the benefits that will appear in his life.
3. It is strictly forbidden to prevent a child from communicating with one of the parents , unless this is approved by the court. A father or mother has the right to see, communicate and take part in the upbringing of their child.

There are situations when a child is a reason to end discord in the family and stop the divorce process.

Parents must understand that they are responsible for their child until adulthood.

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.

What to expect if a child lives with a grandmother separately from his parents

Often the grandmother is called the “second mother”. After all, sometimes unfinished studies, career aspirations or other social situations in the lives of parents lead to the fact that the child is raised by the grandmother. This phenomenon is considered a psychological and pedagogical problem.

And like any problem, this phenomenon, without a doubt, has a number of positive and negative sides. A child who lives with his grandmother is more prone to weight problems. This phenomenon is caused by two reasons.

Firstly, grandmothers often feed their children, accustoming them to dairy, flour and sweets in unlimited quantities from early childhood. After all, grandmothers believe that a well-fed child is automatically healthy and happy. Putting parenting on the shoulders of grandmothers harms not only children, but also parents, since the latter may never learn to take on a certain level of responsibility. After all, parents, while raising a child, go through a kind of school of life in order to correspond to the serious title of father or mother, acquire skills in caring for him and master the basics of personality education. As a result, when responsibilities are transferred to grandmothers, parents and children turn out to be practically strangers to each other, between whom there is no necessary level of trust and affection.

In some situations, more negative consequences appear, such as a feeling of resentment and even anger on the part of the child, a feeling of uselessness for parents. Secondly, children raised by grandmothers are limited in physical activity. After all, a grandmother is unlikely to take her child to the mountains, fishing, rollerblading with him or jumping on a trampoline. Excessive physical activity indoors, to which young parents would be more tolerant, is perceived irritably by an elderly person, instilling in the child the idea that noise, running around and games are pampering and disobedience. It is no coincidence that nature and society have established that children should be raised by their parents.

Even in this traditional and normal, from a social point of view, situation, various problems and tensions often arise between children and parents. The age-old problem of “fathers and children” is caused by the difference between generations, which on average is 20 years. Naturally, the abyss of interests, differences in views on life, understanding of the prestige and relevance of social phenomena between grandmothers and grandchildren, caused by a difference of 40–50 years, not only give rise to problems between them, but also contribute to the formation of a distorted perception of the surrounding reality in the child’s worldview. Of course, in a situation where a child is raised by a grandmother, there are also positive aspects.

He is always fed, clean, surrounded by love and care. But for the full harmonious development of children, parents must raise them. And a child should come to grandmothers, with their wisdom, kindness and tendency to pamper their beloved child, in order to occasionally feel most loved.

The only exceptions are those cases when there are no parents or they are deprived of parental rights.

Arbitrage practice

Most often, children are left with their mothers, and the order of communication in relation to fathers is determined. The opinion of a child over 10 years of age is taken into account, but due to limited legal capacity, it does not always become fundamental for an objective consideration of the case.

Example:

The couple is getting a divorce in the district court, and at the same time the issue of leaving the son with one of the parents is being decided. The mother wants to take him for herself, but the father is against it. The child is 12 years old and claims that he does not want to stay with her due to his strict upbringing. His father allows him everything, never swears, there are no scandals.

During the proceedings, it turned out that by strict upbringing, the son meant his mother’s demands to do his homework every day, not sit at the computer for a long time, and try to study well. The father was never interested in the child’s education, but a couple of times a month he went for walks and fishing with him.

Based on the results of the proceedings, the court sided with the mother, considering that the minor would be better off with her.

If the child claims that he feels uncomfortable with one of the parents due to psychological incompatibility, abuse, and indicates a desire to stay with the other, the court will take his opinion into account.

Judicial procedure

Both the mother and the father can initiate legal proceedings to determine the place of residence of the child. A statement of claim is filed with the court at the defendant’s place of residence.

Important information: The claim is subject to consideration in the district court, since there is a dispute between the parties about the children.

Depending on the circumstances of the case (demand for divorce, collection of alimony), a request to determine the place of residence of a minor child can be combined with the above requirements or submitted separately.

During the trial, the judge must find out the following points:

• The baby's attachment to each parent;
• Age;
• Having brothers and sisters;
• Moral qualities of mother and father;
• Opportunities for each parent to raise (earnings, housing, marital status).

Attention: From the age of 10, a child can express his opinion in court when resolving family disputes (Article 57 of the RF IC).

Based on the information received and other documents, he will make a reasoned decision.

Documents for court

Going to court involves collecting a package of documentation. The statement of claim is drawn up on the basis of:

• Plaintiff's passports;
• Birth certificates of children;
• Certificates of divorce;
• Certificates of income of the plaintiff;
• Characteristics from the place of work;
• Housing inspection report;
• Certificates about family composition;
• Certificates from kindergarten or school;
• Receipts for payment of duties.

The list of documents is not exhaustive. In each specific situation, other documents may be provided. For example, certificates confirming the inability of the second parent to fully raise the child.

Lawyer's answers to popular questions

The court left my son with his ex-wife, although he said that he wanted to live with me. Can the decision be appealed?

Yes, you can challenge the decision through the appellate authority by filing a complaint before it comes into force.

At the trial, during an interview with the daughter, it turned out that her father had repeatedly beaten her and she suffered psychological trauma. Can I terminate his parental rights?

You can, but you will have to prove the fact of abuse. The issue is considered after the initiation of separate proceedings.

I have a good job and high income, my own home. The wife receives alimony and works for 15,000 rubles, lives in a rented apartment. The court left her daughter with her because... she herself wanted to live with her mother. Is there any way to challenge this? I want to take her for myself.

It is possible to challenge it, but the likelihood of the decision of a lower authority being overturned is negligible. The financial and property status of the parents influences the decision-making, but it is not made only on the basis of the better financial situation of the mother or father.

The court wants the 14-year-old daughter to come to the hearing and express her opinion on who she will stay with. I believe that this will cause her moral harm. Can I not bring my child?

You can, because You act as a legal representative and have the right to make decisions in this case.

We are divorcing my husband, and at the same time the issue of determining the place of residence of our common 5-year-old daughter is being resolved. I have no one to leave her with. Is it possible to take her to the meeting?

It all depends on the rules of order established in court. In most cases, you will have to ask the judge or chairman for permission. According to general rules, the presence of children under 14 years of age is allowed only in connection with a summons to court.

What to do if the child is not yet a year old?

Usually, under the age of one year, a child is strongly attached to his mother, not only mentally, but also physiologically. Therefore, the place of residence is almost always the place of residence of the mother, and until self-care skills are acquired, meetings with the child should take place in the presence of the mother at her place of residence or actual location.

If the other parent has strong arguments and reasons to say that the child’s living with his mother will have a bad impact on the child’s development and mental state, we can talk about the exclusivity of such cases when the guardianship authorities side with fathers defending the rights of their children. In general, the child’s father needs to try very hard to sue the child.

By the way, according to the law, a husband does not have the right to divorce his wife if her child is less than a year old, if she is pregnant... even if she herself agrees to the divorce!

At what age does a child have the right to vote in court and does he see his father?

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. Article 57

At what age does a child have the right to vote in court when parents divorce?

Eczema, gastritis, stuttering, obsessive movements - all these are the most typical manifestations of children’s internal tension, with the help of which they invite adults to think about the family climate. Children 2.5-3.5 years old react to family breakdown by crying, sleep disturbances, increased fearfulness, decreased cognitive processes, untidiness, and addiction to their own things and toys. They have great difficulty parting with their mother.

You should know that after a court decision on visits, it may change downward if it is noticed that such communication leads to a negative impact on the child. Also, the list of possible situations includes infringement of the rights of the child, violence, and more.

In such matters, it would be a good idea to seek advice from a lawyer. Under no circumstances should you resort to illegal or violent actions, child theft, etc. In case of a lawsuit, this fact will only aggravate the situation.

Video: Advice from a lawyer

Most often, when a relationship breaks down, children remain with their mother, which makes the female gender believe that they have more power than their ex-husband. In reality, this is not the case, and a joint child is a common pupil, so the parents’ rights to the child are equal.

The law does not establish at what age a child reaches, the court is obliged to listen to his opinion when resolving disputes about him, including when resolving a dispute about his place of residence. The law says that the court is obliged to listen to the child’s opinion if the child can express his thoughts. Thus, the law connects the need to listen to the child’s opinion when resolving a dispute about him not so much with the child’s age, but with his ability to justify his opinion, for example, about why he wants to live with his mother and not with his father. At the same time, the court is not obliged to agree with the child’s opinion.