How a child’s place of residence is determined after a divorce - step-by-step instructions with a sample claim

Divorce is an unpleasant process that negatively affects all family members. The once happy spouses quarrel, cannot find a compromise and end the relationship. If it concerns only the husband and wife, then only they suffer.

But if children have already appeared in the family, the process becomes more complicated. For a child, parental divorce is stress and trauma for life. He will have to grow up without the constant care of his mother or father. When a family is destroyed, children suffer more than others. This is also reflected in the legislation of the Russian Federation. The court puts the needs and needs of minors first. Their interests are taken into account first and most often affected during divorce proceedings.

Due to its complexity and to protect the interests of the child, the dissolution of a family union with children occurs only through the court. But to speed up this process and protect minors from unnecessary stress, you can agree and conclude an agreement in advance.

An agreement on children is not mandatory, but it makes it possible to quickly and least painlessly regulate the future lives of minors after divorce. To do this, the agreement must be drawn up in the correct form and contain the information necessary for the court to make a decision.

Drawing up an agreement is complicated by the fact that the laws of the Russian Federation do not establish its clear form. Therefore, parents who want to peacefully resolve the issue of raising children after a divorce have questions about how to draw up an agreement about children. There is information that must be included in order for the agreement to be valid in court.

Drawing up an agreement regarding children during divorce

Russian laws do not clearly define the structure and content of an agreement, unlike, for example, a statement of claim. The approximate contents of a children's agreement are usually as follows:

• Information about the parties to the agreement, for example, full names of the parents, details of the marriage certificate, passport details and registration address.
• Information about children, for example, details of the certificate issued after their birth, their date of birth and full name.
• Issues requiring legal regulation: Place of residence of minors.
• Who will they live with: dad or mom?
• How will the baby communicate with the other parent and with what frequency?
• How does the second parent carry out educational measures regarding young children?
• Payment of alimony: amount, frequency?
• How do ex-spouses share expenses for minors?
• Schedule of communication with minor children of relatives of a former spouse who does not live in the same territory as the children.

A sample agreement that can be used as a template can be found here.

It should be noted that the court does not always accept and approve the agreement drawn up by the parents. This is due to the fact that the judge finds in the text a violation of the rights of one of the spouses or the interests of a minor. To prevent this from happening, you need to familiarize yourself with the following typical violations of the law committed by spouses when writing this paper:

1. In no case should the agreement include a prohibition regarding meetings between the non-custodial parent and the child. This is unacceptable under the Family Code.
2. The same applies to the right to participate in educational activities in relation to a minor.
3. If the text contains clauses regulating alimony for a minor, the judge will not approve the document without notarization.
4. It is impossible to put forward conditions of an enslaving nature against the other party. They may consist, for example, in depriving one of the parents of the right to receive information about the child’s life, state of health, and progress in educational institutions.

Responsibilities of mother and father

A mandatory point in the settlement agreement between the spouses is a detailed explanation of the obligations of the mother and father. This indicates the order and share of participation in upbringing, the time and conditions under which the second parent will be able to spend time with the children. If the spouses were able to agree on material support, then the amount and procedure for allocating funds for alimony are indicated.

If another method of resolving the monetary issue was chosen, then in addition to the agreement a document waiving alimony is attached. However, subsequently the parent retains the right to again demand payment of child support. It is important to specify the duration of the agreement. You can specify the order of division of property and what share of the property goes to the parent who bears the burden of raising.

Both parents must personally sign each sample agreement. The agreement can also be certified by a notary, although the court may accept it without this.

Determining the child’s place of residence after divorce

Parents have the right to indicate in the agreement on children with whom and where young children will live after the termination of the marital relationship, or to draw up a separate agreement on the residence of the child after divorce, a sample of which can be downloaded from this link. Notarization of this document is not required.

Due to the fact that the marriage of a wife and husband with small children is terminated only by the court, the claim document should indicate whether the spouses have come to an agreement on the issue of the minor’s future place of residence. If yes, then this fact must be reflected in the text of the application and the agreement must be submitted along with a list of other documents to the court.

If the judge does not find provisions in the contract that infringe on the interests of a small child, he will give this document legal force.

Pros and cons of an alimony agreement

Is it worth entering into an alimony agreement with your ex-spouse in 2019? Let's look at the main pros and cons of this solution:

Advantages of a voluntary agreement to pay child support

• You do not need to participate in lengthy legal proceedings: the procedure for notarization of documents, as a rule, takes no more than an hour;
• If alimony is paid voluntarily and in full, the alimony payment agreement is not provided at the payer’s place of work, so colleagues will not be aware of your family circumstances and financial obligations.

Disadvantages of a voluntary agreement to pay alimony

• The cost of notary services is quite high. In Russia, the cost of any notarial actions consists of the notarial tariff (it is the same for all regions of the Russian Federation) and legal and technical services (this tariff is regulated by the Federal Notary Chamber of the Russian Federation for each subject of the Russian Federation);
• Complex and controversial judicial practice on changing and terminating agreements on voluntary payment of alimony.

The procedure for communicating, raising and maintaining children after divorce

Regarding meetings between a parent who does not live in the same territory as his minor offspring and his children, the law establishes two key rules:

• The right to communication is inalienable, so no one can prohibit or interfere with conversations between a parent and a child or any other time they spend together.
• A mother or father living with a small child can limit or exclude the daughter or son’s meetings, including through the court, with the other parent, if this parent beats the child, manipulates him for his own purposes, subjects him to psychological pressure, drags him into gambling games, drinking alcohol and committing other actions that harm his morality.

It is possible to resolve issues related to communication only after the parents have decided which of them the minor will remain with after the termination of the marital union. The schedule of calls and meetings, the procedure for spending holidays with the child, the possibility or impossibility of traveling with him outside of Russia, the possibility of communication during the holidays, etc. can be written down in a single agreement that simultaneously regulates issues of communication, education and child support, or in a separate document. A sample agreement setting out the procedure for exercising the rights of a parent can be downloaded from this link.

If it is impossible to reach an amicable agreement, the disagreement is referred to the court for resolution.

The upbringing of minors involves the mother and father taking measures aimed at caring for the moral, mental, physical development and health of their young children. Regulation of the education process can occur in three forms:

1. Parents carry out educational measures in relation to children by mutual consent, without infringing on the interests of the children and taking into account their opinions.
2. According to the written agreement reflected in the agreement on children.
3. According to the decision of the guardianship institution or court decision.

If the spouses decide to record in writing the division of educational functions in the agreement, then they must be guided by the following legislative norms indicated in the table.

The agreement may resolve issues of financial support for young children. In this case, the document must comply with the following standards:

1. Mandatory notarization.
2. The amount of money payable for alimony cannot be less than the amount that would have been awarded if the issue of alimony had been litigated in court.
3. The parties can stipulate in the contract the method and frequency of alimony payments that suits them, for example, money or any property can be transferred to the recipient as payment for alimony. Alimony can be paid in a lump sum, annually, quarterly or monthly.
4. The agreement must provide for indexation of alimony payments.

A sample alimony agreement can be downloaded from here.

If the parents were unable to agree on child support on their own, the dispute should be brought before a judge.

Who has the right to enter into an agreement on the payment of alimony

Only persons who are bound by alimony relations by force of law have the right to enter into an agreement. Persons who are not obligated to pay alimony do not have the right to enter into such an agreement.

The Family Code of the Russian Federation provides a complete list of persons obligated to pay and receive alimony:

1. parents must support their children, including disabled adults;
2. adult children - their needy, disabled parents;
3. needy spouses receive support from the other;
4. other family members - in the absence of parents, children or spouses.

Accordingly, all these persons have the right to draw up an agreement that determines the amount, conditions and procedure for paying alimony.

Challenging an agreement regarding children in a divorce

A challenge can be initiated by one of the parties to the contract if the document:

1. Violates the rights of this party, for example, obliges it to fulfill enslaving or illegal conditions. Such conditions include a ban on raising a minor.
2. Was signed by a party under threat of violence, under the influence of deception, or under the influence of delusion.
3. Violates the interests of a minor, for example, his desire to communicate with his paternal grandmother.

The claim is subject to consideration in the district court both at the location of the defendant and at the location of the plaintiff, if the plaintiff has dependent young children. If the claim is filed during the divorce proceedings, then it will be considered within the same legal process.

The statement of claim must indicate:

1. Information about the parties to the process (full name, contact information, residential addresses).
2. Information about the court authorized to hear the case (name, index, address).
3. Facts of the case: Are the parties married?
4. Do they have children?
5. Briefly the essence of the disputed agreement.
6. Controversial clauses of the agreement with which the plaintiff does not agree.

Due to the variety of disputes related to the violation of the rights of young children, claims are divided into the following categories:

• Determining the place of residence of a minor.
• Establishing the order of education.
• Determining the communication schedule.

List of documents for filing a claim

In addition to the claim document, the interested party must prepare for submission to the court:

1. Copies of the claim for all participants in the case and for the court.
2. Marriage certificate.
3. Children's testimonies.
4. The original of the disputed agreement.
5. Evidence substantiating his position: Information about the defendant’s unlawful treatment of the child (certificate of beatings, a psychologist’s report on the presence of psychological violence on the part of the defendant).
6. Information that negatively characterizes the defendant (criminal record certificates, medical certificates of alcoholism or the presence of infectious diseases).
7. Positive characteristics of the plaintiff from colleagues, teachers and educators of the child.
8. Information about earnings.
9. Psychologist's conclusion about the presence of emotional contact with a minor.
10. Information about expenses for the child, for example, receipts for the purchase of children's clothes and toys.

Arbitrage practice

The case was heard in the Kirovsky District Court of Astrakhan in July 2021.

According to the plot of the case, the father of the minor acted as the plaintiff, who made the following demands to the court:

1. By agreement with the defendant, his child remained to live with his mother, but she does not allow him to see his daughter. Any attempts to reach an agreement must be refused.
2. In this regard, it is necessary to set meeting times from 10:00 Saturday to 19:00 Sunday weekly.
3. In addition, the defendant must not interfere with seeing his daughter on the plaintiff’s territory during the period of time specified in paragraph 2.

The defendant did not come to court and did not present his objections.

Based on the evidence presented by the plaintiff and the conclusion of the guardianship institution, the judge decided that, according to the current legislation, he is obliged to agree with the father’s claims, since the defendant did not provide evidence indicating that the father could negatively influence the girl. In addition, employees of the guardianship institution examined the father’s apartment and became convinced that it was favorable for a minor to stay there.

Regulatory framework

On what grounds does the court make a decision?

The court takes a comprehensive approach to considering a case regarding a child, and therefore takes into account several factors. The basis is made up of material and psychological circumstances. If the child is over 10 years old, then his opinion is taken into account.

On what basis does the court make a decision:

1. Psychological comfort of the child. If a minor family member is not yet ten years old, a psychological and pedagogical examination is organized. Adult children are asked directly which parent they want to stay with.
2. Opinion of guardianship and trusteeship authorities. This service is necessarily present when considering cases involving children. Representatives of the organization conduct conversations with both parents and the child, after which they form a conclusion.
3. Moral qualities of former spouses. Public charitable activities, testimony of colleagues, superiors, friends, and relatives are taken into account. Criminal records and other problems with the law are also taken into account.
4. Financial security and domestic comfort. The spouse’s work schedule is considered, because this determines how much time the parent can devote to the child. Also taken into account is the level of income, the availability of your own home, the quality of repairs in the house and the type of household appliances, the age of the child, the distance to kindergarten and school, etc. Every little thing can have a colossal impact on a court decision.
5. The point of view of independent experts. The testimony of teachers, psychologists and other highly specialized specialists is taken into account.

Evgeniy Baidalin

Family lawyer. More than 10 years of experience

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After considering all the circumstances, the court makes a decision with whom the child will live. If the circumstances of the case change, then it is allowed to review the court decision.

Does the child's wishes affect the outcome of the case?

If the child is an adult (over 10 years old), then the judge must take into account his desires to remain with one of the parents. A minor can express an opinion in court or during a conversation with a person who has a pedagogical and psychological education. The main thing is that the ex-spouses are absent when talking to the child. In front of their parents, children are afraid or embarrassed to honestly express their opinion.

Arbitrage practice

According to statistics, the court equally satisfies the demands of fathers and mothers, but men are less likely to claim that the child should live with them . To increase the chances of winning the case, it is recommended to contact a competent family law lawyer who will answer all questions, advise on the preparation and filing of a statement of claim and formulate the evidence base.

Problems often arise when executing a court order. If the ex-husband or wife does not allow you to see and communicate with the child, then you need to file a complaint with the bailiffs, as this is a direct violation of the law.