Who does a child stay with after a divorce? Who will minor children stay with when their parents divorce?

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Perhaps the most intractable question that arises during the divorce process is who will the minor children stay with? After all, children are not apartment cars, cups, spoons and sofas, chests of drawers, which can be given a material value and divided equally. Every child is an individual.

Their future fate depends on which parent - dad or mom - the court leaves the children with after the divorce, and how they communicate with the other parent. The court has a great responsibility to provide answers to these difficult, acute and painful questions.

Can children be separated in a divorce?

The presence of more than 1 child in a family does not mean that the question of their place of residence after a divorce will be decided by the court strictly according to arithmetic rules, or, simply put, equally. Likewise, the court will not blindly leave all children with their mother or father.

In relation to each of the children, parents have the same equal rights as if they had only one child.

In fact, the courts “divide” children between mother and father if this is due to objective circumstances:

The interests of the children themselves, when maximum attention will be provided to the upbringing and communication with each of them;
Maintaining the level of prosperity and quality of life, since transferring all children to the support of only one parent will inevitably worsen both his financial condition and the standard of living of children in general;
The clearly expressed desire of the father himself not only to support the child in the form of alimony payments, but also to completely take care of his upbringing.

Example: The court left an 11-year-old son to live with his father, since the child was more attached to him, constantly spent more time with him and was with his father at work almost every day. The 7-year-old daughter was left with her mother, since the child’s age clearly required more participation from the mother in her upbringing and, according to the results of a psychological examination, the daughter was more attached to her mother than to her father.

If the court finds that the formally possible division of two children between both parents violates the rights of the child and will clearly affect his development, education and upbringing, he will leave both children with one of the parents.

Features of the division of children in a civil marriage

In the absence of an officially registered marriage, the situation can be of several types:

the child is recognized as the father, about which a corresponding document has been drawn up . In this case, when the relationship between parents breaks down, the order of residence and communication with the child of each of them is determined;
The baby does not have information about the father on the birth certificate . In this case, there can be no talk of any division of children. The minor remains with the mother, and it is difficult for the father to achieve the opposite, since he is not indicated in the documents.

If, in a specific situation, all paternity documents have been drawn up, then determining the place of further residence of the baby and the procedure for communication with him by the second parent is carried out in the same way as in the case of an officially registered marriage.

In the second case, the father faces a long trial to first establish paternity. If it can be implemented positively, then only after that they begin to determine the order of communication.

Who decides the baby's fate?

Divorce in the presence of a minor child occurs exclusively in court, excluding cases of unilateral divorce through the registry office, when one of the spouses is missing, declared incompetent or in prison.

Parents have the right to determine the place of residence of a child after a divorce on the basis of a voluntary agreement, or by confirming their consent in court to the position specified in the claim.

An agreement on children in a divorce is drawn up by both parents and must be notarized.

It states:

Place of residence of the child;
Alimony obligations;
The procedure for the exercise of parental rights and responsibilities by the parent who left the family;
The procedure for communicating with a child.

If the spouses do not have a common opinion, then the judge will independently decide who should transfer the child after the divorce.

Divorce of spouses in the presence of children is carried out:

Where is

In accordance with paragraph 1 of Art. 21 of the RF IC, spouses who have common minor children can dissolve their marriage only in court. In this regard, an agreement on children can be prepared in one of the ways described below in the text.

At the lawyer's

In this case, spouses intending to divorce first contact a lawyer to draw up and sign an agreement on children. At the same time, they have the right to submit the finished document for consideration to the court (Clause 1 of Article 24 of the RF IC). This will greatly speed up the divorce process.

In a court

This option occurs in cases where the divorce through the court began without the preliminary preparation of an agreement on children. However, parents have the opportunity to resolve the issue peacefully even during the trial.

Who does the child stay with after divorce?

There is no clear indication in the law of the parent with whom the children will be left after the divorce. Art. 65 of the RF IC establishes that the judge must take a comprehensive approach to resolving the issue of with whom the child should be left if the parents were unable to agree on this voluntarily.

When determining the child’s place of residence with either parent, the judge must take into account:

The baby's level of attachment to his mother and father, as well as brothers and sisters, if any;
The opinion of a child who has reached the age of 10, as well as his age;
The qualities of each parent (personal, moral, their daily activities, work schedule, etc.);
The level of material support of the father and mother, as well as the opportunity to provide the child with an adequate level of development and upbringing.

All of the above circumstances are assessed as a whole, and no one of them is given close attention.

At the same time, the practice is such that the judicial authorities most often take the side of the mother, especially when it comes to small (preschool age) children who primarily need maternal care.

How to “divide” common children?

There are several ways to solve the problem of determining the place of residence of minors with their mother or father after a divorce:

a peace agreement between former spouses;
in a court.

The first option eliminates conflict between the parties and involves reaching a compromise peacefully without involving the courts.

In the second case, if the parents were unable to agree, they have to go to court to determine which parent the minor remains with.

Settlement agreement

One of the options for determining the place of residence of a minor is the conclusion of a peace agreement between the parents. It is drawn up on a voluntary basis and can be certified by a notary. Former spouses are required to adhere to the agreement. In case of violation, the injured party can go to court.

Through the court

Often parents cannot reach an agreement on their own, so they resort to resolving the conflict in court.
In this case, their task is to present certain evidence of their position, and the decision is made by the court based on the totality of the facts presented. This option for resolving the conflict involves costs, as well as mandatory legal process.

The courts and the parents themselves in the overwhelming majority of cases try to avoid separating their children, as this is traumatic for them.

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.

How to separate children when parents divorce

Determining the place of residence with one of the parents can be done in the following ways:

Voluntarily based on a written or oral agreement between former spouses;
By the court on the basis of a claim for divorce with determination of place of residence or children (or on the basis of a separate claim outside the divorce process).

By agreement

The right to conclude an agreement on this issue is expressly provided for in Part 2 of Art. 66 of the RF IC, however, this norm does not establish requirements for its form and content.

Formally, the parties can agree orally: the defendant, when considering a claim for divorce, confirms to the court his agreement that the child remains with the plaintiff and the court makes an appropriate decision

However, it is better to consolidate the agreement reached in writing. Based on the general meaning of such an agreement, its approximate content may include:

Determination of a specific place of residence with one of the parents;
Conditions for keeping the child, education, treatment, etc.;
Expense obligations of each parent for the maintenance of a minor;
Detailed regulation of the second parent’s right to communicate with the child, as well as control over his living conditions.

Note! The conclusion of a voluntary agreement does not relieve the second parent of the obligation to support a common child. If the agreement is not fulfilled, the parent with whom the child is left has the right to recover child support through the court.

If an agreement on children is presented at the stage of judicial proceedings on an existing dispute (for example, when considering a claim to determine the child’s place of residence), it is subject to approval by the court, which must check the contents of the document for compliance with the law.
If a mutual agreement is reached within the framework of the divorce process or before it, the court only reflects in the decision that the parties have no dispute on the “children’s” issue. In this case, it is advisable to notarize the agreement, since in the future it will have the force of a binding document for the parents.

Through the court

If there is a dispute, only the judicial authorities decide who gets the child. Regardless of the arguments and evidence presented by the parties, the judiciary is obliged to make a decision only in the interests of the children.

According to the rules of civil procedure, claims are brought at the place of residence of the defendant. However, the legislation provides for an exception in cases of termination of marital relations and determination of the place of residence of children.

In Art. 29 of the Code of Civil Procedure of the Russian Federation establishes that a claim for divorce can be considered at the plaintiff’s place of residence if a minor lives with him. At the same time, in Art. 24 of the RF IC defines a list of issues that can be resolved simultaneously with a claim for termination of marriage. These include determining the place of residence of the minor.

Thus, the initiator of the divorce has the right to file a claim in the district court at his place of residence if the child actually lives with him.

Evidence for the claim

If the former spouses have not submitted to the court an agreement on a voluntary resolution of the issue regarding the child’s place of residence, this issue will be resolved by the court in the process of divorce. Based on the requirements of Art. 24 of the RF IC, in the absence of an agreement between the plaintiff and the defendant on this category of disputes, the judicial authorities are required to establish with which parent the children will live after completion of the divorce procedure.

In a statement of claim for divorce with a solution to the issue of a child, in addition to the general requirements of the provisions of Art. 131-132 of the Code of Civil Procedure of the Russian Federation, discussed in detail in the article “Claim for divorce with children”, it is necessary to reflect the circumstances that will influence the decision on the choice of the child’s place of residence:

Evidence of adequate living conditions for the minor;
An indication of the minor’s attachment to the plaintiff during the period of family relations;
Availability of the financial ability to provide the child with adequate living conditions;
A reference to the availability of reports on the inspection of housing conditions drawn up by employees of the guardianship authorities, as well as the conclusion of the said body on the admissibility of leaving the child with the parent.

The list of possible evidence is not established or limited by law; the court is obliged to comprehensively and completely examine all materials in the case. The court will also have to comply with formalities and hear the conclusion of the guardianship authorities on the merits of the dispute, as well as the minor himself, who has reached the age of 10 years.

According to Art. 78 of the RF IC, in court hearings on disputes related to any issues of raising children, the participation of guardianship and trusteeship authorities is mandatory.

If a claim is filed with a judicial authority for the division of children or for determining the child’s place of residence, the court must involve the guardianship authority in the case and send copies of the claim to it.

Guardianship authorities and their role in court

In the ruling on involvement in the case, the court establishes the obligation of the guardianship authorities to carry out a number of different activities, including:

Examine the actual living conditions of the plaintiff and defendant;
Record the inspection results in the inspection report;
Submit the said act to the court;
Provide an opinion on the substance of the stated requirements, reflecting your position.

IMPORTANT: The examination of the place of residence of the plaintiff and defendant is carried out by the guardianship authority at their place of residence. The court involves the guardianship authority to participate in the case at the place of its consideration, but may give instructions to carry out an inspection and draw up an appropriate act to the guardianship authority at the place of residence of the child, the plaintiff, or the defendant, if they live in another area.

The court must take into account the reasoned conclusion of the guardianship authorities when making a decision. In practice, it is the examination report and the conclusion of the guardianship authority that is the most powerful evidence in court.

In addition, when a minor reaches the age of 10, his opinion will also be required to be taken into account when making a decision on which parent to transfer parenting rights to. To do this, the child can be heard in court in the presence of an experienced teacher and child psychologist, and also questioned by the guardianship authorities.

Psychological examination

If the court has reasonable doubts about the objectivity of the evidence presented by the parties, it has the right to order a specialized psychological and pedagogical examination to determine the child’s greatest attachment to one of the parents.

An examination may also be ordered if the court suspects child manipulation.

For example, during a crisis in a relationship, a father may simply “bribe” a child with gifts and material injections (especially a teenager), and before that, not take part in upbringing at all. All this remains to be determined by experts.

The examination is carried out by experienced psychologists and teachers, who, in the process of communicating with the minor, establish legally significant conditions for family relationships, and also determine his objective attitude towards his parents.

Is it possible to change the court's decision in the future?

After transferring a child to be raised by one of the parents, situations are quite possible when his living conditions deteriorate significantly.

Among them:

Significant decrease in parent's income;
Parental evasion from raising a child;
Immoral lifestyle, alcohol abuse.

Control over the living conditions and upbringing of the child should be exercised by both the second parent and the guardianship authorities. If they establish a violation of the rights and interests of the minor, then the second parent has the right to file an application to the court to change the child’s place of residence, regardless of who the court leaves the children with based on its first decision.

An application to change a child’s place of residence is considered by the court according to similar rules, and a decision is made taking into account the examination report and the conclusion of the guardianship authority. If the child’s place of residence changes, his removal and transfer to the second parent is carried out with the participation of guardianship authorities, psychologists and teachers of the minor.

Why does a child stay with his mother during a divorce?

Despite the above-mentioned legal requirement, the resolution of a dispute about the residence of a child after the termination of a marriage is often resolved unilaterally, when the court transfers all rights to raise the mother of a minor without regard to many factors. There are objective and subjective grounds for such a decision:

The court often decides to hand over the children to the mother, since society has accepted the fact of the inseparability of childhood and motherhood as a basis;
In most cases, it is fathers who avoid raising children, fulfilling child support obligations, and communicating with minors;
Often it is the father who causes the breakdown of the family, being caught in treason, drunkenness or unwillingness to support the family. It is logical that such behavior does not at all characterize a man as a person who is ready to provide a decent life for a child;
During the process, only a few fathers decide to go against established practice and seek compliance with their legal rights, claiming to raise the child to a greater extent (or at least equal) than his mother.

If a dispute arises regarding the determination of the place of residence, and the father asserts his right to personally raise and raise the child, the court is obliged to consider all the circumstances of the case, without giving a deliberate advantage to either party.

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.

Video on the topic

The psychological side of the problem regarding the destruction of the family and the question of how to divide children in a divorce is extremely ambiguous. Experts recommend refraining from separating children, especially if it concerns the interests of two or more children in the family, who will take it extremely hard not only the absence of a father or mother, but also the loss of brothers (sisters). And you should also take into account the child’s opinion when his parents divorce regarding who he wants to live with next. Parents who love their children should minimize the stress and shock that children experience when they learn about the divorce of mom and dad.

Arbitrage practice. When children stay with their father

Almost every lawyer will tell you that regardless of the circumstances of the family relationship and after the end of the marriage, the children will most likely live with the mother. This opinion is quite justified, because from the birth of a child, it is the mother who has the closest connection with him.

Meanwhile, the legislation clearly states that parents initially have absolutely equal rights and responsibilities in relation to their common children - to raise, communicate, and live with them. Derogation from such rights can only be due to care for the child and the need to provide him with decent living conditions.

Based on the analysis of current judicial practice, in order to exercise the right to live with the child, the father needs to provide more significant evidence compared to the other side of the process.

Most often, the reasons why the court leaves the child with the father are:

Immoral behavior of the mother: dissolute lifestyle, tendency towards alcoholism or drug addiction, mental disorder;
The mother’s evasion from fulfilling her duties in raising the child, her cruelty towards the child;
A significant gap in material support, as well as in the conditions of detention of a minor;
The conclusion of a psychological examination on the attachment of a minor to each of the parents, as well as the opinion of the child himself.

The more of the listed factors positively characterize the father, the higher the chance of leaving the child with him.

If the child’s age requires constant maternal care (usually up to 3-5 years of age), then the court will only leave the child with the father in exceptional circumstances.

In any case, the final decision about who will get the small child after a divorce remains with the court, and the parties need to support their arguments as effectively as possible. Only an experienced lawyer can correctly assess the situation in a case. You can always contact our expert lawyers on the website for a free online consultation.

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The practice of resolving family disputes related to determining the place of residence of children is quite clear - the courts mainly take the side of the mother without taking into account her financial situation, giving preference to the other interests of the children and the general characteristics of the parents as a whole.

Thus, the “Review of the practice of courts resolving disputes related to the upbringing of children” (approved by the Presidium of the Supreme Court of the Russian Federation on July 20, 2011) clearly states that the greater financial security of one of the parents could not be decisive in resolving the issue of whether to live with the mother or the father. the child will live.

Below we provide an excerpt from the said review in this part.

As you can see, the father's high level of income alone is not enough. To claim the child, leaving a conscientious mother without him.

There were isolated cases of lower-level courts making decisions based on the level of financial support of parents, which remained isolated, being subsequently canceled or changed by the courts of cassation and appeal. Higher courts have sensibly judged that a parent's superior income level alone cannot be a basis for removing a child.