What the law says
In the practice of courts applying legislation when resolving conflict situations related to raising children, it has been established that the decision of the court in no case should contradict or in any way violate the interests of the child.
Even in court, it is possible for parents to enter into an agreement to determine the place of residence of their child, as well as the order of his meetings with the other ex-spouse.
Attention! When there is no consent of one of the spouses or there are minor children, the marriage is dissolved in court.
Since the court will decide two main issues:
- where and with whom the child will live;
- procedure for payment of alimony.
The main criteria that will influence the court's decision are as follows:
- according to the established rule and practice, the mother has priority, since she is the mother in labor;
- The created comfort for life and the conditions for the further development of the child’s personality also influence. This includes both the parent’s financial status and his absence of bad habits;
- the child’s attachment to one of the parents and other family members is taken into account;
- other conditions that determine the situation in the place of residence of each spouse.
Divorce is a rather complex process. One of the most important conditions here will be a sustained approach to all its stages.
It is necessary to try to push negative emotions into the background, especially if the question arises about who minor children will stay with when their parents divorce.
How can a father take his child for permanent residence?
If the father decides to seek cohabitation with the child through the court, then he will have to perform a number of actions. In this case, the father should first of all think about the welfare of the children, and not about revenge or other mercantile considerations.
Pre-trial settlement of the issue
Before filing a claim, you must try to resolve the dispute out of court. Perhaps the mother will provide the father with every opportunity to participate in upbringing, agreeing to give or share the children, for example, the son remains with the father, and the daughter with the mother.
If the mother does not properly fulfill parental responsibilities and the father intends to raise his child himself, then he needs to take the following actions:
- discuss with your spouse who the children will live with after the divorce, present arguments, and calmly talk about issues of upbringing;
- if it was not possible to come to an agreement, it is worth sending a registered letter by mail with a notification so that the mother responds to it in writing (a written appeal will confirm in court that the father tried to resolve the issue);
- contact the guardianship authorities, talk about the current situation in the family, enlist their support (the guardianship council will send specialists to inspect the children’s place of residence, and subsequently a representative of the guardianship authorities will speak in court and talk about the results of the inspection).
Agreements between mother and father must be recorded in the Agreement on Children (Article 24 of the RF IC). The document can be drawn up and completed by a notary. All controversial issues must be disclosed in a separate paragraph. It is necessary to indicate in the document: the obligations of each parent, with whom the children will live, under what circumstances they will communicate with the other parent, etc.
For each child, a separate Agreement is drawn up in two copies with the signatures of the parents. It is recommended that the document be notarized to make it more credible to the court. In addition, the notary will confirm that the agreement was signed voluntarily. If peace negotiations were not possible, an agreement was concluded but is being violated, and you will have to prepare for a trial.
In what case does a child stay with his father during a divorce?
As a rule, the father manages to sue the children if the mother leads an immoral lifestyle and has health problems. It is almost impossible to take a child away from a responsible mother due to temporary financial difficulties. The father's large salary is usually taken into account when determining child support.
To defend his rights, a man needs to collect as many documents as possible that reflect the real state of affairs in the family. The court, protecting the interests of children, will check:
- moral character, lifestyle of each parent (the father should not abuse alcohol, visit nightclubs, the court will definitely check his relationships with his ex-wife, neighbors, colleagues, teachers and educators);
- financial situation of the parties (certificates of income);
- physical capabilities and health status (a medical examination report can be prepared);
- the strength of children’s attachment to each parent (attempts to appease the child with gifts are undesirable, since psychologists can detect attempts at manipulation);
- actual participation in the baby’s life, sincere interest, willingness to take care of him.
In what cases is the child’s wishes taken into account?
The wishes of the child himself must be taken into account, but only after he reaches the age of ten. When interviewing a child at a court hearing, the mandatory presence of a commission member from the guardianship and trusteeship committee is provided.
The child is asked questions that are not complex. Who does he love more? Who would you most like to live with and why?
Important! The guardianship and trusteeship body acts as a third party that does not make independent claims. Its sole task is to protect the interests of children in court proceedings.
The conclusion of the said civil service is the main evidence for the court, which is paid great attention to, since it has impressive legal “weight”.
Who does a child stay with when their parents divorce?
If one of the parents is in a more difficult property and financial situation, but at the same time the child is strongly attached to him, then the judicial authorities, when making a decision, will be based more on his attachment than on how much private property the spouse has, and also what kind of funds he has.
When deciding this issue, we must not forget that one of the parents will pay monthly alimony in the amount of 25% of his total income.
If the child is an infant
Over the past years, a certain judicial practice has developed where it has become very difficult for fathers to prove their right to leave their child to live with him.
There is a certain tradition under which all children under the age of three always remain with their mother.
Because at such a tender age a child needs a lot of maternal love, and men, by social nature in the family, spend more time at work, earning money.
For reference. Prejudice is a rule for the highest judicial apparatus, according to which a fact established by a court decision on this issue that has previously entered into legal force and in the presence of similar circumstances (for example, the participation of the same persons, etc.) is unconditionally accepted.
If the mother is on maternity leave
Since the mother has the right to receive alimony both for the children and for her own maintenance until the child reaches the age of three, the lack of independent income during parental leave will not be a reason to transfer him to the father to raise him.
The lack of official registration at the place of permanent residence also cannot serve as an obstacle to raising a child or in any way limit the civil rights of the mother.
If the mother doesn't work
Only significant reasons can influence a court decision to leave a child with his father, namely:
- chronic stage of alcoholism;
- indecent lifestyle (for example, prostitution in combination with domestic drunkenness and inviting various strangers to the home where children live);
- presence of severe mental illness;
- indecent behavior associated with the systematic beating of a child to a mild degree, as well as the presence of signs of starvation.
Thus, a mother’s temporary or even long-term absence from work is not a reason to take her children away from her.
About a mortgage in case of divorce of spouses with children, see the article: mortgage in case of divorce.
How much does a divorce lawyer cost? Read here.
Can children be separated in a divorce?
The Family Code of the Russian Federation does not say that children cannot be divided between parents during a divorce. If such a situation arises, the decision is made on an individual basis. This takes into account:
- the interests of the child and how much the parent meets them;
- relationship with father and mother;
- relationship with brother and sister (if any).
There are situations in which it is better for children to be isolated from each other. When separating children, the court takes into account:
- level of salary and other income of the parent;
- the moral character of dad or mom;
- what condition is the apartment in, etc.
Need to know!
The main document that will help resolve the issue of children’s residence is the conclusion of the guardianship authorities. This conclusion is written by the guardianship authorities after inspecting the premises where the parent lives, communicating with him and characterizing him.
When he stays with his father
Quite often, a father’s desire to take his children away for upbringing has understandable reasons. The mother may not be of sound mind or have diseases that will interfere with the full development of the children.
It often happens that a father, after a court decision to leave the children with their mother, no longer sees them.
Despite the schedule of communication between the father and the child established by the court, the mother begins to interfere in every possible way with its implementation, hence the desire of the former head of the family to ensure that he remains with him in advance.
The child's residence can be determined with the father. This requires very strong evidence, according to which the court can side with the father.
Preparing this type of statement of claim is impossible without a qualified lawyer or attorney. There are such precedents, but a clear strategy and a comprehensive justification for the chosen legal position are needed.
You should start by filling out a petition to the guardianship and trusteeship authority, in which you indicate compelling reasons determining why the children should live with their father.
In other words, if you cannot reasonably convince the representatives of the specified service that the father will be their best choice, then the case can be considered doomed to failure.
To prove and strengthen the legal position, it will be necessary to collect documents indicating the fact of the father’s active participation in the lives of the children, as well as the possibility of their versatile upbringing.
For example:
- bank receipts;
- sales receipts;
- testimony of other relatives and neighbors;
- characteristics from the place of work;
- confirmation of the availability of comfortable housing with an equipped sleeping area, as well as a recreation area, leisure time and various activities.
In any case, if there are normal living conditions with the mother, the court will lean in her direction, even if the conclusion of the guardianship and trusteeship authority is on the side of the other parent.
When parents don't agree
If disputes about children during a divorce remain unresolved, and the parents do not come to a consensus about which of them the child will live with, then the court will have to resolve it. For more information on where to apply for divorce through the court, read the article - https://divorceinfo.ru/2118-razvod-cherez-sud-kak-podat-zayavlenie
A statement of claim to determine the child’s place of residence is filed by one of the parents in the city or district court, which has jurisdiction over such cases. Justices of the peace do not resolve disputes about children. The claim can be filed either as part of a divorce case, and they will be considered simultaneously, or separately, when the spouses are already divorced.
The statement of claim must be submitted in writing. It must be in several copies, according to the number of parties involved, including for the court. All documents involved in the case and if they are referred to in the application must be attached to the application itself.
To go to court, the plaintiff will need to prepare:
- a well-drafted statement of claim indicating the circumstances why the child should stay with him (it is advisable to seek the help of an experienced lawyer),
- your passport,
- document on marriage (or its dissolution),
- metrics of the child(ren),
- certificate of family composition from the place of residence,
- other documents of significance (certificate of income, court decisions (on divorce, division of property, etc.), characteristics, etc.).
It is mandatory that representatives of the guardianship and trusteeship authorities participate when considering cases of who gets the child in a divorce. They must provide real assistance to the court in resolving disputes about children during a divorce, be ready to characterize both parents, paint a picture of their life and attitude towards the child, and, if necessary, protect the rights of children.
Why is it more often given to the mother?
According to the law, the mother has no prerogatives over the father. Family law establishes one principle related to the equality of spouses both in the maintenance and upbringing of children.
Moreover, in European countries it is not so difficult to leave children with their father. In our country it is very difficult to prove such a right.
The main factor is the child’s attachment to his mother, since he spends a lot of time with her and receives the necessary love and affection from her.
Thus, the necessary maternal care and constant employment of the strong half of humanity have become the main components of the established judicial practice, which in turn gives rise to statistics.
Statistics for last year
It sounds rather cynical if you say that before you get married, you need to think about how to get a divorce later.
Nevertheless, this will make life easier, and sometimes even help spouses look at such things more meaningfully, which in the future leads their relationship to deeper mutual understanding.
We are talking here about concluding a marriage contract, the terms of which will clearly state where and with whom the child remains in the event of a parental divorce, if it cannot be avoided.
The share of court decisions over the entire past year, where priority was given to the mother and the children were subsequently left with her, decreased significantly.
If we take into account the trend that has developed over the years, the transition from a solid and high 95% to a low 88% (over the past twelve months) is quite noticeable, indicating changes in judicial practice.
Children Agreement
The ideal option is to determine with whom the child remains in the event of a parental divorce and enter into an agreement. It is suitable only for those spouses (or former spouses) who can amicably agree which of them will remain to live with the child, and who will periodically meet with him and participate in his upbringing, pay funds for his maintenance.
The “Children's Agreement” during a divorce is signed and drawn up by both spouses. It must be in two copies. And ideally, certified by a notary.
This document is drawn up in any form, but with references to legislative acts, and it should not infringe on the rights of any of the parents. It can indicate the order of residence, upbringing, provision of parents for a common child, schedule of visits with the child, terms of payment and amount of alimony, alimony for the maintenance of a wife for up to 3 years, etc. Parents can include any items at their discretion.
When drawing up an agreement on who the child will stay with after the parents’ divorce, you can recommend that the spouses seek help from competent lawyers. They will provide a sample of a standard agreement or help you draw up a unique document that covers all the nuances and controversial issues.
Both parents must sign the agreement and keep one copy. In order for this document to have greater legal force, it is advisable to have it certified by a notary.
What are the differences between your own and adopted children upon divorce?
There are no big differences, since the law equates adopted children with their own children. There is a certain procedure for imposing alimony obligations during a divorce, and there are also grounds that can lead to the cancellation of adoption.
In such cases, the court fully stands up for the protection of the adopted child, and the law provides the right to oblige the former spouses to fully provide for him, despite the cancellation of the adoption.
These marriages can only be dissolved in court, but there are exceptions, namely:
- one of the spouses was officially declared missing;
- convicted in criminal proceedings for a term exceeding three years;
- the court declared one of the spouses completely incompetent.
Attention! The court may not cancel the adoption. The guardianship service will play a certain role, which must also draw up its conclusion. The opinion of the child himself will be considered important; the age threshold here remains the same and is ten years.
Historically, there is an opinion that a child will be better off with his mother, hence the psychological aspect.
Whatever the public position on this issue, one thing is clear: only love and full support from both parents will help their child grow into a full-fledged individual.
How a divorce is processed in the presence of minor children is shown in the article: divorce in the presence of minor children.
What documents are needed for a divorce through court if there are no children, see on the page.
Find out the statistics of the causes of divorce in Russia from this information.
NTVP "Kedr - Consultant"
LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Family law issues » Dispute between divorcing spouses about the place of subsequent residence of children after the divorce and about the division of property
Applicant S. reported that she and her husband have children aged 13 and 7 and are planning to divorce, while the husband wants to keep the youngest child for himself. The spouses own 3 apartments; the spouse’s income is twice as much as the wife’s. Both spouses are citizens of the Russian Federation and a marriage contract has been concluded between them, which describes the division of 2 apartments and luxury goods after marriage.
Applicant's questions.
1. How will the place of residence of children be determined after a divorce?
2. Does the spouse have the right to bring the child into his apartment without her permission if the spouses live separately.
3. How will the property be divided?
Lawyer's answers
1. To resolve the issues of who the children will live with after the divorce and who will raise them , the applicant was explained the following: if the spouses have common minor children, the divorce takes place in court. The exception is if one of the spouses (clause 2 of article 19, article 21 of the RF IC):
- declared missing by the court;
- declared incompetent by the court;
- sentenced for committing a crime to imprisonment for a term of over three years.
To resolve the issue of dividing children, the following explanations were given.
A. If possible, enter into an agreement regarding children
The legislation provides that even before the divorce, spouses have the right (but not the obligation) to conclude:
- an agreement on the child’s place of residence, which determines with whom the child (children) will live after the divorce;
- an agreement on the procedure for the exercise of parental rights, which determines the procedure for the exercise of parental rights by a parent living separately from the children, issues of raising children, including the choice of educational institution, organization of recreation, etc.
The presence (or absence) of these agreements cannot prevent the issue of divorce. Moreover, if the spouses have not reached an agreement on the procedure for exercising parental rights and there is a dispute between them about the upbringing of the child after a divorce, then this dispute, upon the application of the spouses, the court can resolve along with the issues of divorce and determining the child’s place of residence.
Since there is a dispute between the spouses about the children, including their place of residence, such cases are subject to consideration in the district court. The plaintiff can combine in one statement of claim several interrelated demands (for divorce and for determining the child’s place of residence) (clause 4, part 1, part 3, article 23, article 24 of the Code of Civil Procedure of the Russian Federation).
B. Submit to the court an agreement on the children’s place of residence (subject to its achievement)
An agreement on the residence of a child can be submitted to the court along with an application for divorce or at any other stage of the consideration of the divorce case (Clause 1 of Article 24 of the RF IC). The court is obliged to review the agreement and determine whether it is not contrary to the interests of the child or one of the spouses.
The agreement may be presented in writing or brought to the court orally.
B. Prepare a statement of claim and file a lawsuit. Take part in a court hearing on divorce
The statement of claim, in particular, indicates when and where the marriage was registered; whether there are common children, their ages; whether the spouses have reached an agreement on their maintenance and upbringing; in the absence of mutual consent to dissolve the marriage - the reasons for the dissolution of the marriage; Are there other requirements that can be considered simultaneously with the claim for divorce (Article 131 of the Code of Civil Procedure of the Russian Federation).
The following should be attached to the statement of claim (Article 132 of the Code of Civil Procedure of the Russian Federation; paragraph 5, paragraph 1, Article 333.19 of the Tax Code of the Russian Federation):
— marriage certificate (original);
- birth certificates of children;
— a receipt for payment of state duty in the amount of 600 rubles;
— power of attorney (if interests in court will be represented by a representative);
- documents confirming the circumstances on the basis of which the claim is brought at the plaintiff’s place of residence;
— other documents confirming the circumstances on which you base your claims.
Additionally, you need to submit an agreement on the procedure for exercising parental rights, on the payment of alimony, on the division of jointly acquired property and other documents related to the divorce, if they were drawn up (Articles 131, 132 of the Code of Civil Procedure of the Russian Federation; clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 05.11.1998 N 15).
These documents are presented in the form of an original or a duly certified copy (Part 2 of Article 71 of the Code of Civil Procedure of the Russian Federation). You also need to attach copies of the statement of claim and documents for the defendant and third parties, depending on their number.
When considering a case of divorce, the court will take into account the opinion of the parties that they have agreed with whom the children will live after the divorce, and will attach the agreement (if any) to the case materials.
If the spouses have not reached an agreement on the place of residence of the children, then when considering the divorce case, the court must independently determine which parent the children will live with after the divorce. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of the parents , financial and marital status of parents, etc.) (Article 24, paragraph 3 of Article 65 of the RF IC).
Depending on the circumstances of the case, the court may order an examination (forensic psychological, forensic psychiatric or complex) (Section III of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on December 23, 2015).
In the absence of agreement between the parents and in accordance with Art. 57 of the RF IC, a child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests.
D. Obtain a court decision
The court decision stipulates the child’s place of residence, as well as issues of parental participation in raising the child (if the spouses have made demands for the court to resolve these issues).
The marriage is considered dissolved from the day the court decision enters into legal force.
The court, within three days from the date the court decision entered into legal force, must send an extract from it to the civil registry office at the place where the marriage was registered (Article 25 of the RF IC). A certificate of divorce is issued to each spouse (Article 38 of Law No. 143-FZ).
If the court decided only on divorce, but the dispute about the child was not resolved, then one of the former spouses has the right to file a new statement of claim to determine the child’s place of residence . This can be done at any time after the divorce.
D. Take part in raising a child after a divorce
Regardless of the place of residence of the child determined by the court, after a divorce both parents have the right to participate in raising the child:
- in general order;
- by agreement of the parties on the procedure for exercising parental rights by a parent living separately from the child (if such an agreement was concluded);
- in the manner determined by the court (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 N 10).
If for any reason the right to participate in the upbringing of a child of one of the parents is violated, he has the right to file a claim in court to restore the violated right.
2. Regarding the applicant’s question, does the spouse have the right to register the child in his living space, in accordance with Art. 70 of the Housing Code of the Russian Federation, the consent of the remaining members of the tenant’s family and the consent of the landlord are not required to move in with the parents of their minor children.
Thus, if the husband is the official father of the child (the child’s birth certificate indicates the husband of the applicant in the father column), then he will be able to move the child into his living space without the consent of the wife.
3. The following explanations were given to the applicant’s question about the division of property: according to Art. 20 of the Family Code of the Russian Federation, a dispute regarding the division of the common property of spouses that arises between spouses is considered in court, regardless of the divorce, by the civil registry office. In accordance with Art. 39 of the Family Code of the Russian Federation, when dividing the common property of spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses, which was concluded between the applicant and her spouse.
The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family.
When dividing the common property of the spouses, the common debts of the spouses are distributed between the spouses in proportion to the shares awarded to them.
As the Plenum of the Supreme Court of the Russian Federation indicated in paragraph 15 of Resolution No. 15 of 05.11.1998 “On the application of legislation by courts when considering cases of divorce,” the common joint property of the spouses is subject to division (clauses 1 and 2 of Article 34 of the Family Code of the Russian Federation), is any movable and immovable property acquired by them during the marriage, which, by virtue of Art. Art. 128, 129, paragraphs 1 and 2 of Art. 213 of the Civil Code of the Russian Federation can be the object of property rights of citizens, regardless of the name of which spouse it was acquired or funds were contributed, unless a different regime for this property is established by the marriage contract between them. The division of the common property of the spouses is carried out according to the rules established by Art. Art. 38, 39 of the Family Code of the Russian Federation and Art. 254 of the Civil Code of the Russian Federation. The value of the property to be divided is determined during the consideration of the case.
Property acquired as a gift or by inheritance, as well as things for individual use, with the exception of jewelry and other luxury items, is not considered jointly owned, although acquired during marriage, but with the personal funds of one of the spouses that belonged to him before marriage. Article 36 of the Family Code of the Russian Federation).
The applicant was given: a form of claim for divorce, determination of the child’s place of residence and collection of alimony and forms of 3 agreements that she can conclude with her husband (notarized):
— on determining the place of residence;
— on the procedure for exercising parental rights by a parent living separately from the child;
— on the payment of alimony and the procedure for exercising parental rights by a parent living separately from the child.
Consultation was given in November 2021 as part of the Republican competition “Professional Lawyer 2017”.
Consultant Tatyana Yurievna Neklyudova, legal consultant of Myasnaya Kompaniya LLC,
