Division of children in divorce in 2021

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If a family has joint minor children, then divorce is possible only through the court. With such a divorce, it is often quite painful to resolve the issue of with whom the children will live after the divorce. There are often cases when disputes about with whom minors will live arise not so much from the desire to create better conditions for the child, but from the desire to take at least some revenge on the former spouse.

Who will the child live with after the parents separate?

No matter how crazy the expression “dividing children during a divorce” may sound, however, upon divorce, there will be a need to find out how the court divides children during a divorce, since it is this authority that can help put everything in its place even if the parents have not reached a mutual decision.
Every citizen has a law in his or her country, and it states that parents have equal rights to their children (Article No. 61 of the RF IC). In Russia, the division of children after divorce is mostly decided in favor of the mother.

If parents have an acute problem of how to separate their children after a divorce, then both will need to contact a family law lawyer. He will be able to advise on how best to proceed in a difficult or problematic situation regarding the division of children when the registration of their parents’ marriage is terminated.

Let's consider whether, during a divorce, it is possible to peacefully decide how to divide the children. This is quite real - you just have to sit down and talk with your once loved one about it. In most cases, parents themselves agree on where and with whom the joint child will live, who from the broken couple will visit him and on what conditions and pay child support. The fact of a mutually accepted “children’s” decision can be confirmed by an official agreement, signed by a notary in the magistrate’s court.

○ What does a child division agreement provide?

In accordance with Art. 66 of the RF IC, parents of a minor, naturally with mutual consent, have the right to draw up a written agreement, certified by a notary, defining:

With whom and where will the child live?
The procedure for communication and meetings of a parent living separately from the child.
How will the child's education be organized?
How will the child’s leisure time be organized?
Who bears the financial costs of providing the child with additional education, treatment, etc.
Alimony and other material and property obligations of each parent.
Other issues related to the maintenance, upbringing and education of a minor.

An example of such an agreement can be found here.

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Function of the court

Some married couples are unable to find a compromise not only in matters of division of property and assets, but also cannot resolve the dilemma of how to divide children after a divorce. In the absence of an agreement between the parents regarding the division of children during a divorce, the court (district), according to Art. No. 24 of the RF IC, after the trial, will make a decision in the interests of the child.

The court will determine:

The minor will live with the mother or father after the parents’ divorce and on whose territory will establish a schedule of communication with the child.
Who will pay child support and in what amount.
Conditions for the division of jointly acquired property of spouses at the request of both or one of the members of the married couple.
The amount of maintenance from the ex-spouse at the request of the husband/wife who has legal grounds to receive it.

Arbitrage practice

In the vast majority of cases, the court leaves the child with the mother. But there are also opposite court decisions, so fathers do not need to despair and give up. There are examples of court decisions when the court gave the child to be raised by the father, and recently such decisions have been made more and more often.

Example 1.

The couple Olga and Maxim R. were married for six years, they had a son, Timofey, who was four years old at the time of the divorce. Maxim initiated the separation from his wife; along with the claim for divorce, he filed a claim to determine the place of residence of the minor Timofey with him.

To substantiate his claims, Maxim presented the court with evidence that Olga did not care for the child at all, drank, took drugs, and led a riotous lifestyle. This was confirmed by the kindergarten staff and neighbors. Maxim presented the court with certificates from a medical institution stating that his wife had been repeatedly, but unsuccessfully, treated for drug addiction.

The court found out that Olga does not work anywhere, does not have her own home, and is going to support the child using alimony, which she wants to sue her husband for.

Based on the evidence presented and the testimony heard in court, the court made a decision to determine the place of residence of minor Timofey with his father, Maxim R.

Example 2.

Vladimir D. filed a claim with the Oryol City Court to determine the place of residence of his daughter Anastasia, born in marriage to Maria D. In the statement of claim, Vladimir asked the court to transfer his daughter to be raised by him.

At the trial, the plaintiff stated that Maria was not involved in raising her daughter at all, gave her to her elderly sick mother, did not visit the child for a long time and was not interested in the fate of the girl. For three months, the daughter lived with her father, as the grandmother underwent long-term treatment in a hospital, during which time the mother never visited her daughter.

In response to Vladimir’s request to hand Anastasia over to him to raise, Maria refused and stated that she was not going to lose good alimony, and if Vladimir insisted on his own, he would never see his daughter again.

To prove his words, Maxim presented a certificate from a medical institution about the long-term illness of his former mother-in-law; his words were confirmed by the kindergarten staff and Maxim’s neighbors. The impressive amount of alimony payments was confirmed by a certificate from the plaintiff’s place of work.

The court found that Vladimir has a decent financial situation, a well-paid permanent job, a good apartment, all this allows him to create excellent conditions for living and raising his daughter. Maria, on the contrary, does not have her own home, she lives with her mother, and is often absent from home, since her work involves long trips, and her grandmother’s health does not allow her to leave her young child with her for a long time.

The court satisfied Vladimir D.’s claims in full.

Disputes about determining a child’s place of residence are special. Here the fate of a young family member is often decided: how he will live, in what conditions, with whom he will be better off - with his mother or father. Therefore, if the parents have decided to divorce, then the decision about who their children will stay with should be made carefully and thoughtfully.

If it is not possible to reach an amicable agreement, then the very first step when going to court should be a consultation with a competent lawyer on family issues. An error in the preparation of documents, an incorrectly written statement of claim, an incomplete presentation of evidence to the court - all this can result in a court decision that cannot be corrected in the future.

If some property disputes can last for years without much damage to the parties, then a delay in determining the place of residence of a minor can often end sadly and sometimes tragically for the child.

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How to influence a court decision

As you know, a claim for the division of children after a divorce is filed in court (local or district) at the place of registration of the father or mother. When considering a petition for the division of minor children, the judge will refer to Article No. 23 of the Civil Code of the Russian Federation and Article No. 78 of the Family Code of the Russian Federation.

Figuring out how to divide children after a divorce is not as simple as determining who will keep the silverware or furniture. The prosecutor's office, guardianship and trusteeship authorities will be involved in the consideration of the case of separation of children during divorce. Representatives of these organizations will carefully study:

living conditions of the mother and father;
the child’s attachment to each parent and closest relatives - grandparents, brothers, sisters, if any;
the health of each parent (disability, drug addiction, mental illness, registration at a tuberculosis clinic) and the ability to care for the child;
recorded facts of violence against one of their spouses or other family members;
the wishes of the child, if the child is mature enough (from 10 years old) to express his opinion;
presence of facts of violation of the law;
income level of father and mother;
characteristics of neighbors at the place of residence and work of the father and mother.

To understand how the court divides children in a divorce, you need to know that each of the above factors will certainly influence the judge’s decision when deciding whether to grant joint or sole custody. In joint custody, mom and dad will split parenting time roughly equally. If one parent is awarded sole custody, the other parent will be assigned specific times to meet with the child on a regular basis.

Women often suffer from a man’s inadequate (rude) attitude towards themselves and their children, so they turn to lawyers with the question of whether it is possible to divide children in a divorce and how best to do this if there is abuse of minors.

If the fact of violence is confirmed, the court may grant the right to raise the child to only one parent, without granting the other the right to visits at all or only by allowing supervised meetings in the presence of a social worker.

When revealing facts of child abuse, there should not even be a question about whether it is possible to divide the children during a divorce; this must be done (transfer the rights of education to a balanced parent), so that in the future a child does not grow up with a sick psyche against the backdrop of terrible memories.

What steps must be taken to ensure that the court takes the applicant’s side?

If the former spouses cannot decide with which of them the minors will remain and a trial is pending, it is necessary to collect as much evidence as possible that the child will be better off with you than with the other parent. To do this, even during the preparation of the statement of claim, you can take the following actions:

Enlist the support of the guardianship and trusteeship authorities. To do this, you need to ask them to check the living conditions in the residential premises where you intend to live with the child and compare them with the living conditions of the defendant. Of course, such a step is worth taking if you are sure that your conditions will be a priori better.
Obtain certificates in form 2-NDFL or bank account statements if you have your own business. You must prove that your financial conditions will allow you to provide for your son or daughter in full.
Confirm your trustworthiness with certificates of no criminal record.
A bank statement confirming timely and full repayment of loan obligations, if any, will confirm your financial responsibility.
A good reference from the place of work, as well as from the place of residence, will not hurt.
Go through a medical examination and get a conclusion that you do not have any serious illnesses.
Enlist the support of relatives and neighbors; their testimony can help you win the case.

We must not forget that if your opponent is serious about winning the case against you, he will take the same steps. Therefore, your arguments should be much stronger and more convincing.

If you have any facts proving the other parent’s unreliability, you don’t need to be shy about “washing dirty linen in public,” because we are talking about the fate of your child. Therefore, if there is information about the opponent’s unworthiness, it must be voiced in court, of course, confirmed by evidence or testimony. This could be information about:

mental problems, alcoholism, drug addiction of the defendant;
lifestyle or work that will interfere with the normal upbringing of the child (long working hours, night shifts, passion for extreme sports, etc.);
irresponsibility of the opponent (loan debts, addiction to gambling, criminal record);
low social adaptation;
infantilism, aggressiveness and other negative qualities that will interfere with the upbringing of the child.

During the trial, you must behave with restraint, not succumb to the provocations of the defendant or his lawyer, and not enter into altercations or conflicts with them. But excessive calm is also undesirable; the court must see that you are not indifferent to who your child will stay with, that you sincerely want him to live with you, you want to raise him.

Divorce with a common disabled child

Let's look at how to divide children during a divorce if the child has a disability. As in any other situation, children with special needs may end up living with either mom or dad. However, the divorce procedure in cases where a family is raising a child with a disability is more complicated than under normal circumstances. The problem is that you need to calculate the amount of child support taking into account the additional costs of a child with special needs before and after the age of 18. These children have an increased need for specialized medical care, services and equipment, over-the-counter medications, vitamins, and nutritional needs. Uncertainty about the nature and cost of future assistance makes it difficult to estimate disability-related costs in a divorce proceeding. The purpose of determining who the child will live with is to understand what will be best for all parties. A lawyer will help you figure out how to divide disabled minor children during a divorce.

Psychological and pedagogical examination

There are situations when the court itself cannot make a decision about who the child will stay with. This happens when both parents have the most positive characteristics. Then the court orders a psychological examination and assigns it to a specific psychologist. He works with the minor and asks the following questions:

the child is most attached to mom or dad;
psychological relationships of the minor with each family member;
which parent has more influence on the child;
individual characteristics of a minor (psychological and psychiatric condition);
whether the child’s opinion about which parent he wants to live with was imposed by someone.

A pedagogical examination is carried out if it is not possible to conduct a psychological examination. The court has the right to entrust it to a social educator. He asks all the same questions.

Specifics of the division of two or more children in a divorce

The division of two, three, or four children during a divorce has the same scheme as the division of 1 child. Parents can draw up either a settlement agreement or resolve the issue in court.

When drawing up a settlement agreement, all issues relating to upbringing, determining the place of residence, the order of meetings, and payment of alimony will need to be covered for each minor offspring.

An agreement about children, their agreements regarding place of residence, meetings and communication, and upbringing may concern each of the children separately.

The role of guardianship authorities in divorce proceedings

Representatives of guardianship and trusteeship authorities are required to attend courts related to divorces in the presence of minor children. This is a procedural requirement.

In addition, before the process, guardianship authorities conduct a study of the living conditions of the children. Based on the inspection of the child’s place of life, a report is drawn up, which is then presented to the court. In some cases, this document can be decisive.

For example, if a child lives with his mother in a semi-basement, damp room, in poor living conditions, and the father has a comfortable apartment with a room intended as a “children’s room,” the guardianship authorities may recommend handing over the child to the father.

Children of different sexes

Some men and women believe that it is not only possible, but also necessary to separate children of different sexes upon divorce. There are married couples who, by common agreement, divide their children by gender: a girl - to the mother, a boy - to the father. It is impossible to say unequivocally that this is correct, since both the son and daughter may lack the care of the second parent.

The law, in the event of a trial, will always protect the interests of children, and primary custody of them will be transferred to such a person who will raise him with care and love, since this is the primary task of parents.

Practice shows that in 90 out of 100 cases, custody of children is transferred to the mother, not the father.

○ Issues of living and communicating with a child after a divorce.

There are several most frequently asked questions related to the division of children. Let's look at the most important ones:

1. Is it possible to prove through the court the right of the father to have the child live with him - yes, undoubtedly, although this will be very difficult if the mother does not lead an asocial lifestyle.

2. Is the child’s opinion taken into account when determining with whom and where he will live? It is established by law (Article 59 of the RF IC) that the child’s opinion can be taken into account only after he reaches the age of ten.

3. If the court leaves the child with the father, is the mother obliged to pay alimony - yes, Chapter 13 of the RF IC establishes the procedure for determining and collecting alimony and other expenses for the maintenance of children.

4. Is it necessary to have the consent of both parents to transfer a child from one medical or educational institution to another? It is legally established that both parents have the same rights; as a rule, such decisions are made by the parent with whom the child lives alone.

This decision can of course be challenged. But think about whether it is worth putting the child in a stressful situation.

Of course, the problems discussed in our article are just the tip of a rather complex process, but I hope that the recommendations we have given will help many avoid basic mistakes and protect children from unnecessary stress.

If you have a question regarding children after divorce, you can ask it in the form of a free legal consultation on the page https://topurist.ru/ response in 15 minutes.

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Grounds for selecting a child

In Russian judicial practice, there are still situations when a child is left with his father despite the objections and wishes of the mother. How and why does this happen?

Firstly, the court evaluates all the above circumstances.
Secondly, there are a number of factors, the presence of which ensures a solid tipping of the scales in favor of the baby’s father.

What grounds will be accepted by the court as sufficient for leaving the child with the father?

Repeated neglect by the mother of parental responsibilities;
Established facts of violence or humiliation of a minor;
Failure to fulfill responsibilities for the maintenance or education of one’s child;
Alcoholism, drug addiction, antisocial lifestyle.

All these facts must be proven by the husband if he wants to take the child away. The child’s mother does not have to prove anything, since according to the principles of civil proceedings, each party is obliged to prove the circumstances on which it bases its arguments.

Evidence of the mother’s dishonesty can include:

Help;
Decrees and decisions of courts on bringing to responsibility for failure to fulfill the duties of a parent or other offenses;
Witness's testimonies;
Conclusions and materials of guardianship authorities.

The court conducts a thorough examination of the evidence presented, interviews witnesses and parties, and requests additional information. And only after this is a decision made to leave the child with one of the parents.

If the mother does not work and has no source of income

The very fact that the mother has no income or official work is not decisive. For children under 3 years of age, the mother’s employment is not taken into account at all, since the baby’s mother has the right to receive alimony from the child’s father.

If we are talking about children over 3 years of age, then the ability of the child’s mother to provide a decent life for her children is assessed taking into account:

Additional, official, unofficial and passive sources of income;
Availability of property, housing;
Help from parents and other close relatives;
The reasons why the mother does not work and has no source of income.

The mother's lack of work is taken into account by the court, but is not used as the basis for the court's decision. The main requirement is that the mother’s income, including that received through benefits, etc., be sufficient to provide for the child. At the same time, the father is also not relieved of the obligation to support common children, because in this part both parents are equal before the law.

Sharing children by mutual consent

If the parents wanted to act wisely and decided not to resort to court proceedings for the separation of children, they can come to an agreement. This is the least conflicting option for both children and parents. However, it will not be possible to completely avoid trial. The presence of a minor child requires participation in legal proceedings. However, if there is an agreement, the proceedings will take place quickly and without stressful situations.

Parents can enter into more than one, or several agreements at once. One will regulate the frequency of communication with children, another agreement will indicate the amount of maintenance and its nature, the third will take into account vacation trips, and so on.

Important! A separate agreement may be provided for each spouse. It is worth bringing a form of such a document already certified by a notary to the court hearing. This will keep the unpleasant aspects of the proceedings to a minimum.

agreements are available on the Internet. However, we strongly recommend that you conclude such a document with a notary. He will not only tell you how to best reflect your rights and legitimate interests on paper, but will also primarily respect the interests of the child.

The divorce agreement is reflected in the Family Code, and information about it can be found in Article 23 24 of the Family Code.

To give such an agreement? Article 66 of the Family Code clearly answers these questions. The agreement regulates:

who will the baby live with?
where exactly,
how the process of acquiring knowledge by a child will be organized,
who will bear the material costs of raising and providing for the child,
alimony benefits and material advantages are taken into account,
the order of communication between an adult and a child is established,
The issue of organizing leisure time, including vacation, is being considered.

How to divide 1 baby?

Further residence is certainly decided on the basis of the agreement reached by the couple. The impossibility of reaching an agreement is determined by the use of levers and tools of the judicial concept. In order to achieve a positive decision, each party is obliged to provide the court with compelling evidence in favor of their right to a child in the event of a divorce - this is established by the Code of Civil Procedure of the Russian Federation.

Is it possible to separate brothers or sisters?

Any family lawyer will tell you that you can divide apartments, cars, cups and spoons, but not children. It is impossible to divide them equally, not even because there may be an odd number of children in a family, but because a quantitative approach is inapplicable to children in any case.

Although it is generally accepted that separation of siblings is unacceptable, this option is not uncommon in practice, especially if the parents have declared their agreement among themselves, and if the children express the same opinion.

In general, brothers and sisters do not necessarily have to be close psychologically; experts consider forcing children to communicate with each other even dangerous, especially if they are in early adolescence. You should not perceive children as one whole, because each of them is an independent person. But this statement applies only to teenage children; the courts do not separate children under 10 years of age at all.