Guardianship is one of the existing forms of protection that is feasible at the state level.
If it is issued, it is important to take into account the fact that it can be installed over the child only with the consent of the closest relatives.
This nuance is spelled out in the Family Code. As you know, the state, through the implementation of special laws, provides assistance and reliable support to people who do not have material well-being or are socially vulnerable.
But despite this, there are many aspects that significantly complicate the whole process. Before obtaining guardianship of a child, it is necessary to obtain consent to guardianship: both from the child and from relatives.
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Guardianship procedure
The currently existing family legislation was created in order to protect the needs of the future of our country, including the right of each of them to have their own family and be raised in it.
It is the most important and fundamental of all rights existing today.
The legislation states that new parents are immediately entrusted with a great responsibility, which consists in supporting children who have not yet reached adulthood. Guardians are obliged to take care of their well-being in all areas of life, health, participate in their development and create comfortable living conditions.
Unfortunately, today, many children are deprived of such simple happiness as a family. And this happens for various reasons: not always the fault of the parents. Due to various circumstances, a child may remain an orphan and then he is transferred to the authorized bodies or to the care of guardians.
Guardianship is a type of definition of children when they are accepted into a new family not as a half-blooded child, but for upbringing. It is important to note the fact that it can only be issued for those children who have not yet turned fourteen years old.
For children older than this age, guardianship is applied. It consists of caring for and controlling a teenager until he comes of age.
There are several cases in which a guardian may be appointed for a child (who is under eighteen years of age):
- sudden death of both spouses;
- deprivation of parental rights;
- significant reduction of rights to the baby;
- recognition of both spouses as incapacitated or limited in their ability to work;
- parents ignore their direct responsibilities towards their own child, which relate to upbringing, maintenance and support;
- constant absence of parents near the child due to work activities (travelling on business trips, working abroad);
- absence of parents due to being in prison;
- the presence of unfavorable conditions that violate the established interests of a child who has not yet reached the age of majority;
- list of other circumstances.
Registration of guardianship is not an easy and rather lengthy procedure. In order for it to be successful, a whole list of necessary conditions must be met. Representatives of the guardianship authority participate in this action.
To persons applying for guardianship, these government organizations issue an opinion after a detailed analysis of the papers submitted with the application. Do not forget that without the conclusion of an organization with certain powers, subsequent registration will be impossible.
In order to clearly receive a conclusion that confirms the possibility of becoming a guardian, you should bring the following package of documents to the relevant organization:
- statement of initiative to become a guardian;
- certificate from the place of work, which confirms a stable financial position;
- a certificate confirming residence in a house or apartment and rights to it (her);
- a certificate confirming the absence of a criminal record and stay in places of restriction of freedom;
- a doctor’s report confirming the absence of fatal diseases;
- biography of the applicant;
- consent to guardianship of all members of the applicant’s family in writing;
- living conditions survey paper.
After a detailed analysis and study of all received documents, certificates and conclusions, the guardianship authority makes a final decision. If the applicant meets all the requirements, a positive verdict is issued.
After receiving a positive response, the person can take the following steps to formalize a child custody agreement.
When and from whom is it necessary to obtain permission to establish guardianship?
There is no fundamental difference between guardianship and trusteeship. But at the age of 14, children have partial legal capacity, so in this case we are talking about guardianship (Article 145 of the RF IC). Article 21 of Federal Law No. 48 dated April 24, 2008 states that a candidate cannot represent the interests of a minor without a decision of the relevant body.
All transactions concluded on behalf of a minor without a decision to establish guardianship are declared invalid.
Documents are required to be submitted in the following cases:
- death of parents or deprivation of their parental rights;
- declaring them incompetent.
The child's closest relatives must contact the child's guardianship department. If there are none, then he can be cared for by any other person who meets the requirements.
If the parents leave for a long period of time or cannot fulfill their duties to the minor for a certain time, then short-term guardianship can be established. In this case, it is required to obtain consent from all family members. This document is required from a child if he is over 10 years old. In this case, the permission must be certified by a notary.
You must understand that consent and an application for guardianship are two different documents. Thus, the first one can be written in advance and notarized when necessary. After this, you need to contact the guardianship department with the remaining papers to obtain permission to establish guardianship/trusteeship.
The whole process is regulated by Federal Law-48 and articles 145 - 148 of the RF IC.
Consent from the child
In order for guardianship to be formalized by the applicant, he must obtain the consent of the child, which must be presented in a previously approved written form.
This application should be drawn up and filled out using a special form, which can be found below.
This point is important and requires mandatory implementation in order to obtain custody of a child under eighteen years of age.
When necessary
The child’s consent to guardianship is necessary because when transferring him to a new family, the guardianship authority is first guided by the interests of the child himself.
The important point is that in the process of registering guardianship, the deciding vote is the permission of the orphan who has reached the age of ten.
Sample
A sample of the child’s consent to guardianship is provided by the relevant organization dealing with this issue. The completed sheet must contain a positive response to the request for guardianship by the applicant.
It is important to note that only children over ten years of age can consent to guardianship. Registration of guardianship is impossible without their consent.
For whom guardianship can be established?
Guardians may be persons who do not have the proper legal capacity to protect their own interests, rights and freedoms. The following are considered to have limited legal capacity:
- children under 18 years of age left without parents;
- elderly people who, due to age and general illnesses, are unable to take care of themselves on their own.
Guardianship is also established for people who, due to mental illness, are recognized by the court as incompetent or partially capable.
Consent from spouse
This document is also fundamental in the process of considering and obtaining guardianship of a child. Without the consent of one of the natural parents, who is incapacitated and not deprived of parental rights, it is impossible to formalize guardianship.
Sample
According to current legislation, there is no specific template for consent to guardianship of one of the parents.
It can be drawn up with the help of guardianship officials.
After compiling it, you simply need to attach it to the package of documents. The written consent must contain the orphan's first name, last name, patronymic and date of birth.
Written consent of adults for guardianship - sample filling
It is possible to draw up an application yourself in free form, but it is better to follow a sample that will definitely be accepted by the guardianship staff; it should contain:
- full name of the territorial body to which this document will be submitted;
- Full name and identification details of the applicant;
- contact details and place of residence;
- information about the child and the reason why the parents cannot fulfill their obligations;
- consent of relatives to establish guardianship;
- request to officially recognize the candidate as a guardian;
- date and signature.
This document must be certified by a notary. Usually the cost of this service does not exceed 2,000 rubles. If you are not sure about the correctness of the document, you should contact a practicing lawyer.
For a small fee, he will help you draw up everything in accordance with the requirements of current legislation. The specialist will also check whether all the papers are collected so that the application is accepted the first time.
It is interesting that guardianship is not established for children aged 16 years or over who have undergone the emancipation process. Emancipation occurs after early marriage, starting a business or being employed. From this moment on, the child is fully responsible for his actions in accordance with this legislation.
Expert opinion
Maria Lokshina
Family law expert since 2010
If both parents are alive and have legal capacity, then it is impossible to issue one consent on behalf of both. Everyone writes it on their own behalf and has it certified by a notary.
Dear readers! To solve your problem right now, get a free consultation
— contact the on-duty lawyer in the online chat on the right or call:
+7
— Moscow and region.
+7
— St. Petersburg and region.
8
- Other regions of the Russian Federation
You will not need to waste your time and nerves
- an experienced lawyer will take care of solving all your problems!
Consent from relatives
When registering guardianship, consent to guardianship must also be given by relatives.
First of all, this applies to spouses who did not die and were not deprived of their rights to the baby. The potential guardian must obtain their written consent.
This moment will allow you to avoid unpleasant conflict situations in the future. This requirement is enshrined in regulations.
Relatives also include grandparents, whose consent is also required.
Sample
A sample consent for guardianship from relatives can be obtained from the guardianship authority, whose employees will help you draw up the document correctly. Without it, it is impossible to obtain the right to custody, since if there are immediate relatives, this right first passes to them.
Where to contact
An application for establishing guardianship is submitted to the local guardianship and trusteeship authority.
Having received the application, this body will carry out a lengthy procedure to verify the applicant for the role of guardian. The check will include:
- assessment of the applicant's personality;
- assessment of the applicant’s living conditions;
- getting to know the person for whom guardianship is planned to be established, and much more.
Therefore, before writing an application, it is advisable to contact the guardianship authority for advice and find out how the verification procedure will go, what documents should be attached to the application, etc.
If there is no time for consultation, then you should remember that the list of documents that should be provided to the guardianship and trusteeship authority is strictly regulated.
Thus, the application will need to be accompanied by:
- the applicant’s passport, as well as a pension certificate if the applicant is a pensioner;
- certificate from the place of work;
- certificate of income for the last year;
- documents confirming the availability of living space and an extract from the house register;
- certificate of marriage or divorce, if the person is or was married;
- certificate of no criminal record;
- health certificate;
- notarized consent of all family members over 10 years of age to establish guardianship;
- autobiography.
The list is exhaustive.
Consideration of the application
The law gives the guardianship and trusteeship department 10 days to consider the application. During this period the following measures must be taken:
- an examination of the applicant’s living conditions was carried out;
- the submitted documents were studied;
- acquaintance with the future ward was made.
Based on the results of the consideration, the guardianship and trusteeship authority makes a decision by which it either agrees to establish guardianship or refuses to satisfy the application.
At the same time, a decision is made to appoint the applicant as a guardian. This resolution will confirm the legal status of the trustee and can subsequently be used to protect the interests of the ward.
Adopting a child without parental consent
The consent of the child’s parents for his adoption is not required if they:
- unknown or recognized by the court as missing; declared incompetent by the court;
- deprived of parental rights by the court;
- for reasons recognized by the court as disrespectful, they do not live with the child for more than six months and evade his upbringing and maintenance.
The adoption of a found (abandoned) child whose parents are unknown can be carried out in accordance with the procedure established by the legislation of the Russian Federation if there is a corresponding act issued by the internal affairs bodies.
The adoption of a child abandoned in a maternity hospital (ward) or other medical and preventive institution can be carried out in the manner established by the legislation of the Russian Federation if there is an appropriate act drawn up by the administration of the institution in which the child was abandoned.
Adoption of brothers and sisters by different persons is not permitted unless the adoption is in the best interests of the children.
