Determining the child’s place of residence with his father or mother: arguments, jurisdiction, procedure, factors, judicial practice - statement of claim to determine the child’s place of residence

10.07.2022

When parents divorce, the question of who the minor children will live with is often raised. The problem can be resolved peacefully, based on the interests of the child. If there is no agreement between the spouses, the child’s place of residence will be determined in court.

Place of residence of the child: concept and legislative framework

A minor child cannot live alone! This is stated in Art. 65 RF IC and Art. 20 Civil Code of the Russian Federation. He must live with one of his parents if it comes to divorce. Parents must resolve this issue. If they cannot, the court will do it for them.

After a divorce, neither parent is deprived of their rights to the child. With the exception of some situations that are prescribed by law. Therefore, both spouses have the right to live together with the child, raise him and support him financially. Based on the interests of the minor, the parties must agree among themselves about with whom he will live.

The separation of a child from one of his parents does not indicate that he cannot visit the second parent, spend holidays, weekends or holidays with him. With a civilized approach to resolving the issue, children do not feel deprived of the attention of either parent.

Ways to determine residence

You can determine the address at which the child will live after family ties between the parents are terminated by court in the following ways:

• voluntarily, that is, independently;
• through the court.

The question of who the child will live with does not arise if one of the parents:

• deprived of rights;
• died;
• declared missing by the court;
• declared incompetent by the court;
• sentenced to more than 3 years.

Determination of the child's place of residence with the father occurs if these conditions apply to the mother.

By consent

Parents can agree among themselves and independently decide which of them the minor will live with. An oral agreement can be established, but it will not have legal force. So that later there is no reason to go to court again and raise this issue, the parties enter into a settlement agreement between themselves, in which all the details are spelled out:

• meeting places;
• their frequency;
• the address where the child will reside permanently;
• other nuances.

The document does not have to be notarized, but it is recommended to do so. A notarized settlement agreement can be presented to the court during a divorce. The justice body will take it into consideration and make an appropriate judicial decision.

Important! The document is drawn up taking into account the interests of the child, not the parents. If the child is already 10 years old, the court will ask his opinion. If it matches what is stated in the agreement, the judge will have no questions. If it does not match, then additional conversations will be held with a psychologist.

By court

If there is no agreement, then the decision will be made by the judge alone, based on several conditions:

• the presence/absence of parents having sufficient living space to live together with the child;
• the opinions of the child himself, if he is already 10 years old;
• from the child's dependence on the mother. The decision will be in favor of the mother if the child is not yet 3 years old;
• the distance of the new place of residence from the environment where the child grew up and in which he is comfortable;
• presence/absence of children's educational institutions, medical care, etc.

The opinion of the guardianship and trusteeship authorities, as well as, if necessary, a child psychologist or other specialist will be taken into account.

Procedure during judicial proceedings

In order for the judge to decide the issue of the child’s place of residence after the parents’ divorce, it is necessary to prepare a claim and collect the necessary documents. This is done by the parent who initiated the process and who believes that only he is worthy of raising the child alone.

The other parent should not be on the sidelines! He also needs to prepare for the trial, develop his line of behavior, prepare documents, and convince the court of his concern. Often, the trial is a war between parents!

Mother or Father and their trump cards when determining residence

When there is a struggle for a child, parents sometimes forget that they should act in his interests, and not remember their previous grievances. Therefore, various arguments are used in order to win the court over to one’s side. In particular:

• level of earnings;
• moral aspects of life;
• number of square meters in the apartment;
• availability of nannies, governesses, tutors;
• other factors.

In most cases, the child remains to live with his mother. But there are often cases when the court determines his place of residence with his father, making a decision in his favor.

Jurisdiction

Cases in which the fate of a minor is decided are heard in district courts. The claim must be filed at the place of residence of the defendant - this is the jurisdiction. There are some circumstances in which a claim may be accepted at the plaintiff's place of residence. For example:

• serious illness;
• having a dependent, including a small child;
• a difficult financial situation that does not allow you to spend money on a ticket.

These conditions are relevant if the defendant and plaintiff do not live in the same region or subject of the federation. If they live within the same municipality, then they need to contact the defendant’s address.

Submitting an application

The basis for starting a lawsuit is a claim. It must be drawn up in accordance with Article 130 of the Code of Civil Procedure of the Russian Federation. It must indicate:

• the full name of the judicial authority in which the case will be heard;
• information about the parties to the process - parents or his legal representatives, who cannot agree on with whom their child will live. They must indicate their full name, registration and residence addresses, contact information;
• basic information on the case - where, when and by whom the marriage was concluded, dates of birth of children, details of their main documents, nuances of termination of family relationships;
• the circumstances that brought the parents to court;
• evidence that the child would be better off living with one parent or another;
• reference to legal norms;
• request to the court to determine the address where the child will live after the divorce;
• Date of preparation;
• applicant's signature.

The statement of claim is submitted to the court office along with other documents. A sample might look like this:

Collecting documents

You need to prepare:

• passports of both parties;
• family documents;
• children's documents;
• a certificate stating where the child actually lives and is actually registered;
• a certificate from each parent confirming his income;
• bank statements, if parents have accounts and deposits;
• if one of them receives social payments and benefits, then certificates of their amounts;
• characteristics from the place of work;
• a psychologist’s conclusion about the child’s condition;
• if necessary, the court may require the parties to submit other documents.

When resolving disputes regarding the fate of children and determining the address for their residence, no state fee is charged.

Submission methods

The claim must be brought to court. This can be done like this:

• personally take it and register it in the office;
• send documents using Russian Post;
• convey through a representative;
• using the State Automated System “Justice” portal in electronic form.

The last method is relevant to those plaintiffs who have an electronic signature.

The position of the rejected parent

If the court makes a decision not in favor of one parent, this does not mean that he will no longer be able to see the child, raise him, etc. Determining the place of residence in favor of the other spouse does not limit the rights.

If the parent with whom the child will live creates obstacles to the exercise and implementation of the legal rights of the second parent, you can file a lawsuit with a demand to establish a clear procedure for communication.

He will have to pay child support. The amount will be determined during the consideration of the case. Collection will occur as usual.

Is the child's opinion taken into account?

In order for the court to make the right decision and not harm the child, when determining his future place of permanent residence, he must take into account several determining factors. In particular:

• To which parent is the minor more psychologically attached?
• moral qualities of both parents. That is, if one of them has a history of being registered for alcoholism, this is not in his favor;
• possible conditions for the further development of the child and his education;
• habits and attachments;
• the conclusion of the guardianship and trusteeship authorities is mandatory;
• the opinion of psychologists, teachers and other specialists who can give an expert and independent opinion;
• the opinion of the youngest citizen.

It will be taken into account if the child is already 10 years old. The court will definitely ask him which parent he would like to live with.

Registration and registration of a child

When a decision is made about which parent the minor will live with, the necessary documents must be completed. In particular, register it with the OVM. This is necessary to assign the child to an educational institution or to doctors. Perhaps the parent will receive benefits from social security or apply for maternity capital.

Registration with the OVM is mandatory. If the parents decide, they can register it on a temporary basis. But it is recommended on a permanent basis! For example, if the apartment is not privatized, the registered child will be able to participate in the privatization program.

If the child is left without registration, this will be a violation of current legislation. The parent who allowed a minor to live in their living space will be fined. The amount of the fine is from 2 to 3 thousand rubles.

Newborn

As a rule, they are registered at the place of residence of the mother. The father's consent is not needed. If the decision is made to register with the father, then the mother gives written consent. If there is a court decision, parental consent is not required.

Up to 14 years old

Written parental consent is also required. The registration application is filled out by the person with whom the minor will live. In the “grounds” column, you will need to indicate the details of the judicial act on the basis of which the migration registration is issued.

After 14 years

After receiving a passport, a minor has the right to independently decide where he will be registered. But it must be from one of the parents. When hearing a case about determining the place of residence of a child 14 years of age or older, the court will definitely take into account his opinion.

When completing the paperwork, he will fill out the application for registration himself. The parent will only give his consent.

You can also register a child temporarily at the place of stay until he reaches adulthood. Then the court will no longer be able to influence the choice of his place of residence.

Arbitrage practice

Almost half of marriages between Russians break up. In most families there is a struggle over which parent the child will live with. Sometimes hearings drag on for several months. This causes psychological harm to the minor.

Judicial practice in such cases is quite extensive. Courts often consider such cases. Unfortunately, parents do not always play the “game” in the interests of their child. Often they act in such a way as to take revenge on each other, cause moral suffering, and break faith in justice.

Therefore, it is important to present the facts as they are. If a child feels good with his father, then the mother must accept this fact. The truth will still be established by the court. Therefore, it is better to reach an agreement peacefully.

The court decision is subject to execution immediately after it enters into force. This occurs within 30 days from the date of issue.

This period is given to parents to submit documents for an appeal.

Conclusion

The main thing in this matter is not to harm the child! Parents know their children best, so they can peacefully agree among themselves about who the child will live with after the divorce. The second parent's rights are not infringed! He can also visit the child, walk with him, spend vacations, etc.

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The Supreme Court clarified how to decide with whom to live for children

The Supreme Court of the Russian Federation reviewed the verdict of its colleagues in the case of determining the place of residence of a four-year-old girl and gave important clarifications on what circumstances should be taken into account first of all when resolving such disputes.

Dividing children between parents is one of the most painful and legally complex legal processes, even though our courts consider such cases very often. According to the law, if adults cannot live together and are unable to agree with which of them the child will remain, only the court has the right to decide who to give the baby to.

But, as domestic judicial practice shows, in such disputes, often even people in robes cannot always make a legally verified decision on such a pressing issue. Therefore, the interpretation of laws by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation may be useful not only for the judges themselves, but also for citizens.

Children over 10 years old will be able to travel on trains under the supervision of a conductor

So, a citizen turned to the district court and asked to leave his little daughter to live with him, and not with her mother. As an argument in his favor, the plaintiff told his everyday situation. For five years he lived with a woman without registering the relationship.

Over the years, they had a daughter, who was registered in his apartment. When her parents separated, the girl lived in this apartment for several months. Then the mother took the child. But the plaintiff insists that the child live where he is registered.

According to the citizen, the girl would be better off with her father. Since he has a stable job and a considerable salary. The mother is formally registered in the village, but does not live there, but lives somewhere in the city. And she works every other day or two. He gets little. And when on duty, strangers look after the child.

The father’s guardianship supported and said that the father had decent housing, and the mother did not live at the place of registration. Only the little girl’s mother was against the father’s request. As a result, the district court sided with the father. The appeal did not change this decision.

Even people in robes cannot always make a legally verified decision on such a pressing issue

The mother was forced to go to the Supreme Court of the Russian Federation. There, the defendant’s objections were re-read, and the Judicial Collegium for Civil Cases stated that there were grounds for canceling all decisions in this case, since the Collegium saw in it “significant violations of the norms of substantive and procedural law committed by the lower courts.”

This is what these violations looked like according to the Supreme Court of the Russian Federation.

This confirms the conclusion of the municipality at the mother’s place of residence.

The Supreme Court explained how to distribute credit during a divorce

The district court, when deciding the dispute over where the child would live, proceeded from the conclusion of guardianship at the father’s place of residence and his work schedule. According to the court, the father has an advantage in living conditions. And the appeal was satisfied with this opinion. But not the Supreme Court.

The Supreme Court first reminded its colleagues of the Convention on the Rights of the Child. There, Article 3 states that in all actions concerning children, regardless of whether they are taken by public or private institutions, courts or legislative bodies, primary consideration is given to ensuring the rights of the child.

Our Family Code states that if the parents have not agreed on the child’s place of residence, the court, when deciding this issue, must take into account the child’s attachment to each of the parents, brothers or sisters, the personal qualities of the father and mother, their work schedule and type of activity.

On this occasion, a special meeting of the Plenum of the Supreme Court was held (No. 10 of May 27, 1998).

It said the following - if the parents live separately (it does not matter whether they were married or not), the child’s place of residence is determined only on the basis of his interests and with the obligatory consideration of his opinion. The moral qualities of the surrounding adults and the conditions for living and raising a child are important.

The most common reason for divorce has been revealed

The Supreme Court emphasized that a legally significant and provable circumstance is considered to be clarification of the question of whether living with whom - with dad or mom - will most fully correspond to the interests of the little person.

According to the law (this is the Civil Procedure Code, articles 67, 71, 195-198), the court’s conclusions about facts important to the case must be convincing, with references to legal acts, and should not be general and abstract.

In our case, they turned out to be exactly like that.

This is what the Supreme Court observed in this dispute. Both lower courts said the father's work schedule and salary were "most favorable for raising the child." At the same time, there is not a word about the father’s salary in the case. The question of whether he could support his daughter was not explored.

A young child cannot be separated from his mother except in “exceptional circumstances.” Our court, when deciding where to live for the girl, did not bring up “exceptional circumstances.”

At the time of the trial, the girl’s mother lived with her husband in his apartment. And there, judging by the inspection report made by municipal workers, there are all conditions for life and education. Why the court gave preference to the father’s conditions for the apartment over the mother’s is unclear.

The Supreme Court emphasized that the very fact that the mother does not live at her place of registration in the village “does not indicate the defendant’s improper performance of his parental responsibilities.”

The Convention on the Rights of the Child (Article 12) states that a child who is capable of articulating his or her views must be ensured the right to express them freely on all matters that affect him or her.

Who benefits from new child benefits?

The child is given the opportunity to express an opinion in any judicial or administrative proceedings where matters affecting his or her interests are involved.

The same is said in national legislation - the Family Code of the Russian Federation. The child's opinion on who he wants to live with is asked by the guardianship when drawing up reports on the inspection of living conditions. Teachers or kindergarten teachers, social educators, and juvenile affairs inspectors have the right to ask the same questions.

In our case, the court did not ask such questions to the guardianship. Just as the court was not interested in the girl’s relationship with her parents, her moral and psychological development. The act of guardianship at the place of residence of the child’s father states that it is better for the girl to live with her father. But this statement is not substantiated.

The Supreme Court cited the Declaration of the Rights of the Child. It states that a young child should not be separated from his mother except in “exceptional circumstances.” Our court, when deciding where to live for the little girl, did not bring up a single “exceptional circumstance”.

The Supreme Court ordered the case to be reconsidered.

Territorial jurisdiction of a claim when determining a child’s place of residence

Before filing a claim to determine the child’s place of residence, it is necessary to take care of them. They examine the living conditions of each spouse, their financial and social situation, as well as the opinion of the child who has reached 10 years of age. STATEMENT OF CLAIM. on determining the child’s place of residence. when parents live separately.

Determining the child's place of residence. Claims, agreements

This claim is filed in the interests of the child himself, therefore the plaintiff is exempt from paying state fees.

Sample statement of claim for filing in 2023.

She left because the defendant threatened her. Along with the topic of Determining the place of residence of children, they are also looking for: Place of residence of children Determining the place of residence of children Determine place of residence Dear Sergey! The only correct way out in such a situation is to go to court with a statement of claim.

I am against the child living with the defendant, since children at that age need attention, care and affection from their parents, which the defendant cannot properly provide. The question of determining the child’s place of residence arises in the situation of his parents’ divorce. 2 Voluntary settlement.

A claim to determine the place of residence is initially filed by one of the spouses who is not satisfied with the current state of affairs and wants the child to live with him. Statement of claim for divorce if there is no dispute about children. Determining the place of residence of the child is the jurisdiction of the world or district.

Is it possible to somehow change the jurisdiction in this case? I filed a lawsuit in the magistrate's court, tell me whether the judge can determine the place of residence of the child and the time of stay of the father from the case to determine the order of use of property.

jurisdiction for a claim to determine the child’s place of residence

Contents Statement of claim to determine the place of residence of a child Determination of the procedure for communication between a separately living parent and a child... consideration of claims to determine the place of residence of the child/children.

Let's look at a sample statement of claim to determine a child's place of residence and figure out how to fill it out. A sample statement of claim to the court to determine the place of residence of a child in the event of separation of parents.

If the children live with the defendant, then the claim is filed in the district court according to the general rules of jurisdiction - at the defendant’s place of residence. And is it possible to file a claim for alimony at the same time as the claim for residence?

1. Legal consultation.
2. Civil jurisdiction
3. Determining the order of communication with the child.
4. Hello dears.
5. 3 What evidence does the plaintiff need?
6. 4.1 Payment of state duty.

You can also submit documents at the plaintiff’s place of residence if a minor lives with him. Claim for determination of the child’s place of residence, sample claim and procedure. The territorial jurisdiction of disputes regarding the collection of alimony is determined by the plaintiff. The decision to file a claim in court to determine the child’s place of residence must be balanced and deliberate.

A counterclaim to a court of general jurisdiction to remove obstacles to communication with a child and determine the procedure for communicating with a child. One of the parents files a claim to determine the child’s place of residence with him. Jurisdiction of the statement of claim when filed in court.

Divorce, determining the place of residence of children, division of property, collection of alimony, as well as dismissal, termination of employment contracts, etc. Determining the child's place of residence and jurisdiction. Determining the place of residence of children after parental divorce.

A claim to determine the order of communication between a child and a parent living separately can be brought both in Which court to go to: generic and territorial jurisdiction.

Based on this definition, the children’s place of residence is determined with their mother. Going to court in this case will require maximum dedication and knowledge. A sample statement of claim to determine the child’s place of residence, taking into account the latest changes in the legislation of the Russian Federation.

Will the father be given the chance to live permanently with the child? Determination of the child’s place of residence by agreement of the parents.

The statement of claim must contain the following information. A sample statement of claim to determine the child’s place of residence is given in Appendix 1 (see sample No. 2). Before writing a statement of claim, you should decide which court you will file it in.

The need to understand the question of which court to file a claim to determine the child’s place of residence arose in connection with one consultation. In which court to file a claim to determine the place of residence Determination of the place of residence of children after the parents’ divorce.

In accordance with Articles 137, 138 of the Code of Civil Procedure of the Russian Federation, the defendant has the right, before the court makes a decision, to file a counterclaim against the plaintiff for joint consideration with the original claim.

If the problem cannot be resolved through dialogue, then the parents have the right to file a lawsuit to determine the place of residence of the children. Statement of claim to determine the place of residence of the child with the father. Statement of claim to determine the child’s place of residence (19.5 KiB, 2822 hits).

1. Last updated June 2018.
2. Territorial jurisdiction.
3. All the best; Answer: Article 23.
4. What is jurisdiction?
5. 2 copies of a certificate from the place of work.
6. Jurisdiction of claims regarding the residence of a child
7. Rights and responsibilities of parents and children.

The most common myth is that: “The court will leave the child with the mother in 99 percent of cases.” Statement of claim to determine the place of residence of a child - sample and procedure for registration.

Claim to determine place of residence with father

The article contains an answer to the question of whether it is possible to file a claim to determine the place of residence of a child at the plaintiff’s place of residence and under what conditions. This question is ambiguous. The jurisdiction of cases on determining the place of residence of a child (children) is regulated by the norms of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation). Determination of the child’s place of residence through the court.

Determining the child’s place of residence with his father or mother: arguments, jurisdiction, procedure, factors, judicial practice - Statement of claim to determine the child’s place of residence. lawer 02-02-2016 01:55 Latest posts by lawer.

And the text of the statement of claim must contain logic and answer the question: why should the child’s place of residence be determined with the father and what does the father do? It is necessary to actually draw up a claim to determine the child’s place of residence with the father, and collect documents. The court determined the child's place of residence with his father, satisfying his claim.

A sample statement of claim to determine the place of residence of a child can be found in the section Statements of Claim. Determining the place of residence of a child during a divorce.

A sample statement of claim to determine the place of residence of a child when his parents live separately has been prepared taking into account the provisions of the Family Code of the Russian Federation and clarifications of the Supreme Court of the Russian Federation on issues related to raising children. To (name) district (city) court.

It should be noted that when determining the forms of protection of the subjective rights of a child in family law, both types of jurisdiction are used 1.3 Requirement for a parent’s statement of claim to the court to determine the place of residence and the order of communication with the child.

Before filing a claim to determine the child’s place of residence, you should try to resolve the conflict yourself through a conclusion. If he is already 14 years old, his opinion will play a decisive role in determining the place of permanent residence.

Compliance with jurisdiction when filing a claim

Statement of claim to determine the order of communication with the child. Judicial - the child’s place of residence is determined by the court based on the statement of claim of one of the parents. Dispute resolution by agreement of parents and in court. Please note that when a child reaches 10 years of age, his opinion will be taken into account by the court. Plaintiff: last name, first name, patronymic, zip code and full address. (zip code and address of actual residence, contact telephone number). Determining the order of communication between a separately living parent and a child. Formally, in the Civil Procedure Code of the Russian Federation there is no rule that would allow an application to court to determine the place of residence and the procedure for communicating with a child.

Therefore, even before filing a claim, you should think about how visits or meetings between the child and the other parent will be organized.

Determining the place of residence of the child with the father arguments

Termination of marital relations between spouses entails many consequences, including the need to make decisions about the upbringing and residence of minor children. Often the problem is resolved in court. If the father wants the children to live with him, you need to find out what arguments the court relies on when determining the child’s place of residence other than with the mother?

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Deciding on who the child will live with after the end of the marriage is a very difficult process. When a family relationship ends, not all parents are able to reach a compromise sensibly and peacefully.

Judicial practice shows that the most difficult divorce proceedings take place precisely when there is no agreement on the residence of joint children. Disagreements can arise not only during the process of divorce, but also after its termination.

How does the court determine the place of residence of a child with his father, what arguments need to be given?

Options for determining place of residence

The law provides that each parent has equal rights to raise their children. But after the divorce, the rights of one of the parents who does not have the opportunity to live with the children are significantly reduced.

Parents can determine the place of residence of minor children in two ways:

• on a voluntary basis;
• in a court.

If there is a voluntary agreement between the spouses, the case will not be brought to trial. Only divorce proceedings are dealt with in court. Parents can enter into an agreement regarding the child's residence.

The agreement is drawn up in writing and attached to the divorce petition. Thanks to this agreement, the divorce process is easier and faster.

The court will only approve this agreement.

If during the consideration of the case facts are revealed that are contrary to the interests of the minor, the court may refuse to approve the agreement. These factors include:

1. Lack of permanent residence registration.
2. Lack of permanent official place of work.
3. The presence of a mental illness, which became the basis for registration.
4. Leading an unworthy lifestyle.

The presence of these factors may result in the agreement being rejected.

Determination of place of residence through the court

If it is not possible to reach an agreement between the parents, the determination of the place of residence of the child with the father is made in court.

The court not only decides with whom the child will live, but also determines the procedure for communication with the other parent. This point is very important in a conflict situation between spouses.

Often the other party violates the rights of the parent who lives separately from the children and does not allow them to see each other.

Claims to determine the place of residence of children are filed in the district or city courts corresponding to their place of residence. A mandatory condition during the consideration of the case is the presence of a representative of the guardianship and trusteeship authorities.

The claim is filed at the place of residence of the defendant, but if the defendant lives in another city, then the plaintiff can file a statement of claim in court at the place of his residence. In this case, you will need to confirm that the child actually lives with him.

It is very important to correctly draft a statement of claim. The outcome of the trial may depend on how correctly it is written. The application must contain the following information:

• the name of the court to which the claim is sent;
• all information about marriage registration, its divorce, complete information about children;
• information about parents: full name, place of residence according to registration;
• Next, arguments must be presented that the plaintiff considers essential to resolve the issue. This could be the child’s affection, the father’s living conditions, financial situation. Convenience of living, availability of infrastructure, school or kindergarten in close proximity;
• further, it is necessary to indicate a request to determine the place of residence of the child with the plaintiff;
• list of documents, date, signature.

The application must be written in several copies. The number of copies will depend on how many parties are involved in the process.

In addition, please attach a set of documents:

• plaintiff's passport;
• certificate of birth of children;
• certificate of termination of marriage;
• a document confirming that the applicant has a permanent income;
• statement of receipt of social benefits, if any;
• certificate of residence;
• characteristics from the place of work;
• bank statements about the availability of accounts.

Note! It can play an important role if you provide the court with the opinion of a child psychologist about who the child is more attached to.

What circumstances does the court consider?

What factors does the court take into account when determining the place of residence of the child with the father? The procedure for considering such disputes is regulated by the Family Code. Certain points are taken into account based on Resolution of the Plenum of the Supreme Court No. 10 of May 27, 1998.

First of all, the court can determine a decision based on the interests of minor citizens. Therefore, it is very important that the plaintiff presents strong arguments that the child should live with him.

The court will take into account:

• child's age;
• attachment to each of the parents, relationships with brothers and sisters;
• personal qualities of each parent, their moral behavior;
• relationship between child and parents;
• opportunities for parents to fully raise their children.

All these circumstances must be proven not only to the plaintiff, but also to government agencies.

In accordance with the law, guardianship and trusteeship authorities must participate in all disputes related to minor children.

It is they who must issue the court an opinion on the possibility of the child living with the father. The court takes this conclusion into account when making a decision, but it is not the decisive factor.

Important! The conclusions of the guardianship authorities are often controversial. For a greater chance of winning the case, it is best for dad to find additional witnesses who can confirm or refute the points in the conclusion.

Often the court orders a psychological examination, which helps to establish family relationships and determine the attachment of children.

Children, due to their age and stressful situation, cannot always adequately decide with whom they would like to stay. This is why an examination is carried out to help the child decide.

Judicial practice shows that in most cases, the results of the examination play a decisive role in determining the place of residence of the child.

If the court has determined the child’s place of residence with the father, the mother must immediately petition to determine the order of communication with the child.

Argumentation in favor of the father

When determining a child's place of residence with his father, what arguments must be presented? First of all, the father must prove to the court that during the period of residence with the mother, the child’s rights will be violated.

This can be done if there are witnesses who indicate that the mother does not pay attention to raising the minor. Abuses alcohol, uses drugs, leads an unworthy lifestyle.

But what to do if the mother’s behavior is normal, she does a lot with the children, but the father wants to sue them for himself. How to determine the place of residence of the child with the father in this case? The father can provide the following arguments in his favor:

• prestigious highly paid job;
• good living conditions to create a comfortable life for the child;
• good moral qualities of the father, balanced character;
• strong attachment of the child to the father;
• having common interests, spending time together often;
• healthy lifestyle and involving children in it;
• the opportunity to devote enough time to children, pick them up from school, and take them on vacation.

To support all these arguments, it may not be enough to provide job descriptions and witness statements. First of all, the decision will be determined on the basis of a psychological examination, which can be organized at the request of the father.

Judicial practice in recent years dispels the myth that children should remain with their mothers. There are many cases of determining the place of residence of a child with his father.

Attention! Due to ongoing changes in legislation, the legal information in this article or material may be out of date!
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Determining the child’s place of residence after divorce

The relationship between children and parents is regulated by the Family Code of the Russian Federation and other legal acts. The civil process provides for the procedure for resolving disputes between spouses, including the further residence of minors. Who the child will remain with after the divorce depends on the individual circumstances of the case. The law does not provide for the preferential right of one of the parents to live together with children.

Parents' right to children after divorce

In the event of a divorce with children, the father and mother retain all rights and obligations and are equally responsible. If one parent living with a minor prevents communication with the other, then there is a violation of the rights to communication.

Officially established representatives of a minor after a divorce are authorized to:

• choose a first name, last name and patronymic;
• communicate (including communication with other family members on your side);
• participate in daily life while living apart;
• choose a place of study and form of education;
• determine leisure time (faculties, clubs, sections);
• introduce to religion and more.

The main criterion for the exercise of parental rights is the priority of children's interests.

In the matter of determining the place of residence of a minor, the father and mother are equal parties for the court. Therefore, the decisive factor is the circumstances characterizing the further living conditions and upbringing of the minor, and the opinion of the guardianship authorities.

In case of divorce, the child retains the following rights:

• for housing (Article 31 of the Housing Code of the Russian Federation);
• communication (Article 55 of the RF IC);
• personal property;
• material maintenance (payment of alimony, Article 60 of the RF IC);
• own opinion (Article 57 of the RF IC).

Who does the court leave the children with after a divorce?

Family disputes about residence and communication with a child are considered only by the court. A number of issues resolved during the divorce procedure are regulated by Art. 24 of the RF IC, which in particular defines the equality of parents in the process of raising children.

The fundamental factor is the degree of attachment to the minor and educational experience.

Due to work commitments, it is impossible for fathers to be at home all the time. A weighty argument in persuading the court to leave the child to live with the man is the behavior of the mother, which characterizes an inappropriate (immoral) lifestyle.

A child under 3 years of age remains with the mother. This rule is established by the International Declaration of the Rights of the Child, but there are exceptions:

• cruel treatment;
• immoral lifestyle (alcohol abuse, drug addiction);
• mental disorder;
• serious illness that prevents proper care of the minor.

In the case of children over 3 years old, the court also considers other circumstances relevant to the essence of the issue.

Determining the order of communication

The current legislation of the Russian Federation provides for 2 ways of communicating with children living with another parent:

1. Pre-trial – appeal to the guardianship and trusteeship department:
   • personal visit to state the authority at the place of residence of the minor;
   • writing and submitting an application in the prescribed form.

   This option has a number of advantages:

   • peaceful resolution of the conflict;
   • participation of the guardianship authority does not require payment for services;
   • conducting awareness-raising work with the applicant about the legal rights to the child after divorce.
2. Judicial - filing a statement of claim at the place of residence of the defendant with the minor. Consideration of this category of cases falls within the competence of the district court.

Determination of place of residence

If the former spouses have not reached a compromise in resolving the issue of living together for a joint child through negotiations and signing a mutual agreement, the family dispute is subject to judicial review. A prerequisite for the process is the involvement of the guardianship and trusteeship department (Article 78 of the RF IC).

Determining the place of residence is protracted due to the seriousness of the issue. In order to make the optimal decision, the court takes into account the data provided by the state. institution:

• certificate of inspection of living conditions. An authorized commission checks the living areas of the father and mother for compliance with sanitary and other standards;
• a conclusion that determines the preference in choosing the place of residence of the minor. When drawing up a document, the following are important:
• protection of children's interests;
• the relationship between the child and each parent;
• financial situation;
• living conditions;
• parents' employment;
• health status.

Factors influencing the judge's decision

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When analyzing the situation, the court takes into account the following circumstances:

1. Housing issue:
   • arrangement;
   • living conditions (availability of a sleeping place, etc.).
2. Social position in society:
   • employment;
   • level of regular income;
   • criminal record;
   • precedents (deprivation/limitation of parental rights);
   • health status.
3. Age. The Family Code grants the right to a minor who has reached 10 years of age to participate in a court hearing. Children under 10 years of age often stay with their mother due to psychological attachment.
4. Possibility of education and development (proximity to the home of preschool educational institutions, schools, sections, circles).
5. Relationship between father and mother. A parent who requires constant communication should not advertise differences with their ex-spouse. In this case, the court will decide on rare meetings. The presence of hostility can negatively affect the child’s mental state, which is unacceptable.

Having assessed all the criteria and studied the case materials in detail (including the conclusion of the guardianship authority), the court makes a decision that does not contradict the rights and interests of the minor.

The role of children's age in divorce

A factor that requires the attention of the court during the divorce process is the age of the joint children. If the spouses have not entered into an agreement, the court considers the family dispute according to the following rules:

The process of calling a minor and questioning in the courtroom is carried out with the permission and under the control of a representative of the guardianship authority and the teacher.

Division of children by agreement of parents

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The norms of family law (Article 24 of the RF IC) provide the opportunity for spouses during a divorce to independently decide on the issue of children’s residence.

A children's agreement is a document concluded between parents by mutual consent, providing for the main aspects of the upbringing, residence and maintenance of minors after divorce. A prerequisite is compliance with the legitimate rights and interests of all parties. If this circumstance is violated, the court does not take into account the document and resolves the dispute independently.

Art. 23 of the Code of Civil Procedure of the Russian Federation determines the jurisdiction of cases of divorce in the presence of an agreement on children - the consideration is carried out by a magistrate. An unresolved conflict regarding the residence of a minor obliges the plaintiff to contact the district authority. In this case, the guardianship and trusteeship authority is involved, obligated to provide a housing inspection report and a conclusion on the essence of the dispute (Article 78 of the RF IC).

Parents have the right to change the terms of the agreement or terminate it. The conclusion of a settlement agreement in court proceedings involves the introduction of changes exclusively by a court decision. The document does not require notarization if the issue of collecting alimony is not raised (Article 80 of the RF IC).

Contents of the agreement

The agreement should cover the following content points:

1. Time and place of signing.
2. Personal data of the parties.
3. Subject of the agreement:
   • determination of a parent to continue living with the child;
   • indicating the procedure for communicating with the other parent;
   • organization of the educational process, leisure;
   • alimony, treatment costs, additional education;
   • issues affecting the rights and interests of a minor.
4. Rights and obligations of the parties.
5. Validity period of the document.
6. Procedure for resolving conflicts.
7. Conditions for amendments and termination.
8. Requisites.
9. Personal signatures of the parties.

Sample agreement to determine the child’s place of residence

Agreement
to determine the child’s place of residence

Shakhtersk12.03.2018

Determining the child’s place of residence

Quite often, issues of divorce in Odessa are resolved in conjunction with issues about children, for example, it is necessary to determine the child’s place of residence after a divorce. The establishment of such an order is a very important factor. Jurisdiction for these cases in Ukraine is at the place of residence of the defendant, but under certain circumstances it can be changed.

Disputes about children can be divided into two broad categories: determining the child’s place of residence and establishing the order of communication with the child.

A claim for the removal of a child is usually filed by the plaintiff when he asks to determine the child’s place of residence with him and is executed, if necessary, with the participation of the executive service and the bodies of the Ministry of Internal Affairs of Ukraine.

To understand all the legal intricacies of these issues, you will definitely need to seek the help of a professional family law attorney.

If the parents cannot come to an agreement and determine the place of residence of the child or the order of communication with him, such disputes, as a rule, are resolved by the court with the participation of the guardianship and trusteeship authority. In this matter, there is a misconception that the conclusion of the guardianship and trusteeship authority is mandatory for the court. Actually this is not true.

The participation of the guardianship and trusteeship body in this category of cases is mandatory, but the conclusion of this body is exclusively advisory in nature for the court and has the force of written evidence. It is important for the guardianship authority to establish certain facts.

In our practice, there are often cases when the court makes a decision different from the conclusion of this organization. Indispensable in these matters is the protection of a lawyer in family matters at all stages - both in the children's service and the guardianship and trusteeship authority, and in court.

It is also better to entrust the divorce of spouses to a lawyer.

Often, the arguments presented by a lawyer are decisive when making a decision by the guardianship and trusteeship council or the court. We will do everything necessary to defend your rights to the child.

Often this issue is raised in court by women who fear that after a divorce, the child’s father will simply steal it and decide to “play it safe” in this way; establishing the child’s place of residence in this case provides guarantees.

According to statistics, disputes about the child’s place of residence when a divorce is filed are, in the vast majority of cases, resolved in favor of the mothers. But fathers of children in some situations have every right and reason to win such a case.

The child’s father, who decides to determine the child’s residence after divorcing him, must present compelling arguments to prove the inability of the child’s mother to provide adequate conditions for the child’s life and development.

A parent living separately has the right to determine in court specific days and times of meetings with the child. Judicial practice in these cases varies greatly depending on the circumstances of the case.

In any case, you need to remember that the court does not separate children and each parent has the right to communicate with the child. By contacting our Center, you will receive an adequate assessment of the situation and a clear action plan.

The duration of the processes to determine the child’s place of residence and the procedure for communicating with the child when accompanied by our lawyers in Odessa ranges from 3 months. Our prices can be found in the “Cost” section.

At the end of the process, the lawyer will provide a court decision, which will be binding on the participants in the process.

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Hello! Upon reaching the age of 16, a child travels abroad without the consent of the father, but only on his own initiative.

Best regards, lawyer

Odessa Family Law Center

Hello! Moving to another country is possible only with the permission of the child’s father, or according to a court decision.

Best regards, lawyer

Odessa Family Law Center Hello! Maria Viktorovna, explain for what purpose you need this. Give more information.

• Best regards, lawyer
• Odessa Family Law Center

Hello. The mother lives with the child, the father has been avoiding paying child support for 10 years and does not give consent to travel abroad at sea. According to the new rules, you need to obtain a certificate of debt or a decision of the court or guardianship authority about where the child lives.

How to get a second one if it’s clear that he lives with his mother, but you need a piece of paper.

Hello! As you understand, in your case you can use the first option. To obtain a court decision to determine the child’s place of residence or to obtain confirmation from the guardianship and trusteeship authority about the child’s place of residence, you need to seek legal assistance to prepare a package of documents for application to the competent authority.

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Odessa Family Law Center Hello! Your plans are not entirely clear from your question. Do you want to take your child from the boarding school to live with him, therefore, do you not want to pay child support in this situation or do you want something else? Please specify your question.

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Odessa Family Law Center Hello! Alexander, please be more specific with your question. Thanks for reaching out!

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Odessa Family Law Center Send an application or call (048) 772-52-66

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