Treaty on the transfer of a child to raising a seven. Features of the contractual regulation of the adoptive family Treaty on the admission family must contain
1. The admission family agreement should contain information about the child or children transmitted to the education in the reception family (name, age, health, physical and mental development), the term of such a contract, the conditions of detention, education and education of the child or children, the rights and the obligations of adoptive parents, the rights and obligations of the guardianship and guardianship authority towards adoptive parents, as well as the grounds and consequences of the termination of such a contract.
2. The amount of remuneration due to adoptive parents, the amount of funds for the maintenance of each child, as well as social support measures provided by the adopted family, depending on the number of children adopted on the upbringing, are determined by the contract on the admission family in accordance with the laws of the constituent entities of the Russian Federation.
The Law of April 24, 2008 No. 49-FZ introduced new articles regulating the content of the contract on the admission family and the procedure for the termination of such a contract (paragraph 21 of Art. 2 of the Federal Law No. 49-FZ).
1. The Treaty on the transfer of a child (children) for education in the foster family is concluded between the guardianship and guardianship authority at the place of residence (location) of the child and adoptive parents. If the child lives on the territory of one local government, and the adoptive family is on the territory of another, then when the child's transfer to the admission family is possible to conclude a trilateral contract.
The approximate form of the contract is provided in Appendix No. 1 to the Regulation on the Family Family.
An approximate contract for the transfer of children and the conditions of their content includes the basic provisions typical of any receiving family, which, respectively, can be supplemented or changed by agreement of the parties. The social conditions of the contract include the social, as well as the psychophysiological characteristics of the child (children) transmitted (transmitted) to education in the family: incl. Name, age, state of physical and mental development of the child.
The regulations on the admission family indicates that the Treaty on the transfer of a child to education in the foster family should provide for the period on which it is placed in the reception family (paragraph 15), but in practice for the term this contract may be two species:
- permanent. In this case, it is valid until the child is fulfilling eighteen years (if the child has acquired a complete capacity for the age earlier than the age of majority - before marriage or emancipation);
- for a certain period. The urgent contract is concluded, for example, when transferring a child with a chronic disease, a disabled child.
Subsequently, depending on the state of health, the contract is either stopped or extended for a new term.
In accordance with the contract, adoptive parents undertake to educate the adoptive child (children) on the basis of mutual respect, organizing a common life, leisure, mutual assistance. Reception parents should create sufficient conditions for the child's education, to take care of his health, physical, mental, spiritual and moral development, as well as to protect the rights and legitimate interests of the adoptive child. In particular, the contract must contain the obligation of parents to ensure the care of the child (children) and treatment, systematic visits to specialist doctors in accordance with the medical recommendations and the health of the child. As for the child's education to receive education, the reception participants must provide a visit to the adoptive child (children) of the school, follow his performance, maintain contact with teachers and educators of this institution. In case of impossibility of visiting the child with a child for health reasons to obtain education in the forms available to the law.
In accordance with the norms of this Chapter (21) of the Family Code, as well as the provision on the admission family, the Treaty of Creating a Family obliges adoptive parents to protect personal and property rights of children, to be responsible for their lives and health, to create a family environment. Control over the implementation of these duties lead bodies of guardianship.
According to the legal nature, this civil law contract and, accordingly,, by virtue of the action of the principle of freedom of the contract, any conditions corresponding to the interests of the child and the Parties to the Treaty may contain.
The distinguishing features of the contract for the transfer of children to education in the adoptive family is that his execution is closely related to the personality of the participants and therefore the parties can not resort to the help of a representative or make the necessary actions by proxy. In accordance with the current legislation of the Russian Federation, the adoptive parents require a personal fulfillment of obligations taken by them under the contract. Therefore, under no circumstances, they cannot convey their rights and obligations under the contract to other persons.
The content of the contract for the transfer of a child to education in the adoptive family is important for the fulfillment of the entire protection of the child's rights. By virtue of this, the text of each contract can be individualized, taking into account the individual characteristics of the child, a potential parent-child parent and a specific situation. This is the main value of the contract. For example, it can be provided for the provision of individual rooms or their re-equipment, the purchase of clothes for children, depending on the climatic conditions of the area, where the adoptive family has lived, the acquisition of the necessary educational supplies or special items for additional child classes, etc.
The grounds and legal consequences of the termination of the Treaty on the transfer of the child in the adoptive seven are regulated by the norms of Article 153.2 of this Code.
2. Payment for the work of adoptive parents is carried out in accordance with the rules established by civil law, in accordance with Art. 709 of the Civil Code of the Russian Federation and is determined by the Agreement of the Parties. Therefore, the parent-caregiver receives payment due to a special law.
Adsid parents receive wages in the amount established by the Law of the Directory of the Russian Federation on the remuneration of adoptive parents. The amount of wages of adoptive parents according to the standards of the article is commented on, in particular, on the number of children taken to education.
In addition to funds for the remuneration of adoptive parents and the content of adoptive children, there are also a number of benefits and rights provided by the reception family as a whole.
The position on the receiving family indicates that the receiving family is attached to the purchase of food to food bases and shops. The guardianship and guardianship authorities can allocate the receiving family to heating, lighting, maintenance of housing, the purchase of furniture and payment of domestic service services. Finally, the adoptive family (both children, and parents) have the right to prepare the vouchers in the sanatorium, health camps, holiday homes, etc. If the reception family takes on the upbringing of three or more children and does not have the appropriate premises, guardianship authorities and The guardianship may take over the obligation to provide them with residential premises - a residential building or apartment.
The provision on the priority role of parents in the life and upbringing of their children, their beneficial effects on intellectual, moral and other qualities of the child belongs to indisputable. Each child according to Art. 54 Family Code of the Russian Federation (hereinafter - SC) has the right to live and brought up in the family. "The baby's life in the family is preferable from all points of view. Of course, there is a family in mind, - correctly clarifies A.M. Nechaeva, - not harmful to the upbringing of a minor." Nechaeva A.M. Legal protection of the family // Law. 2004. N 4. S. 7.
In full compliance with the norms of international law in Art. 1 SK is proclaimed as one of the fundamental principles of Russian family legislation, the priority of family education of children. The Russian legislator allocates three legal forms of children who remain without parental care to the SC (Article 123).
1) adoption (adoption) - ch. nineteen;
2) Transfer under guardianship (guardianship) - ch. twenty;
3) Reception family - ch. 21.
The legal basis of the adoptive family is the Treaty on the transfer of a child to raising a family. The conclusion of such contracts is included in the competence of guardianship and guardianship bodies. They act as one side of the contract, and the other party are receiving parents who are ready to fully bear parental rights and obligations. The purpose of the adoptive family, according to T.I. Druzhinina, is to create such conditions so that the receiving child is as long as possible in relations with adoptive parents, did not change these parents and thus had the hope that existing connections would continue in the future, upon reaching the age of majority, see: Druzhinina T.I. Some problems of the adopted family as a form of family education of children left without parental care // Protection of the rights of the child in modern Russia (materials of the scientific and practical conference). M., 2004. S. 161 .. R.A. Shukurov The purpose of the adoptive family as a form of education of children in the family and the main appointment of the adopted family sees in the preparation of adoptive children to independent life Shukurov R.A. Family Family Family Law: Dis. ... Cand. jurid science Belgorod, 2004. S. 7 .. On the education of a child as "the specific purpose of the adopted family", which "entails special legal consequences," indicates in its study L.Yu. Mikheeva See: Mikheeva L.Yu. Guardianship and guardianship: theory and practice ... M., 2004. P. 85 ..
In ambiguously determining the goals of the contract, scientists are ambiguously approach to the issue of the legal nature of the adoptive family agreement.
It is explained, on the one hand, the fact that so far in legal literature does not cease the dispute about the independence of family law as a branch of Russian law (we occupy and justify the position of the "sovereignty of" family law). On the other hand, the dispute provokes the non-standard legal design of the adoptive family agreement, related, firstly, with the position of the adopted child in these legal relations, and secondly, with the specifics of legal relations, which consist of adoptive parents with the guardianship and guardianship authority. The need to resolve the issue of the legal nature of the adoptive family agreement is dictated by the fact that otherwise we will deal with the emergence of legal norms that are inadequately regulating the respective relations. In addition, the incorrect definition of the legal nature of the contract leads to law enforcement errors. Not in vain in legal literature notes that the Treaty on the transfer of a child to education in a foster family cannot be attributed to any of the well-known types of contracts in civil law. See: Civil Law: Textbook. T. 3 / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 1998. P. 433
In general, there can be several approaches to the definition of the legal nature of the adoptive family agreement.
1. Civil legal position. Her followers, in particular L.Yu. Mikheeva, N.V. Letov, A.M. The slave is classified agreement on the admission family as a civil law contract in favor of a third party. Letov N.V. Adoption as a priority form of children's device. Tomsk, 2003. p. 33.; Mikheeva L.Yu. Guardianship and guardianship: theory and practice ... M., 2004, p.84; Ralez A.M. Family law: course of lectures. Belgorod, 1998. P. 184.
2. Family legal position regarding the nature of the contract justified by R.A. Shukurov. See: Shukurov R.A. Decree. op. P. 7.
3. At the Treaty on the admission family mixed family - and civil legal nature. See: Fetisova O.V. Decree. op. P. 164 - 176.
4. Conditional civil-legal nature of the contract. According to her adherents, in particular E.Yu. Valyavina, with the highlight of the civil-law of the contract on the admission family, should take into account the differences between this agreement from other civil law contracts in order of concluding and maintenance. See: Civil Law. T. 3. Tutorial / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 2001. P. 470.
5. At the heart of the Treaty on the admission family - there are labor relations.
Use in the editorial office of Art. 152 of the RF IC of the RF, such terms, as "labor", the "wage amount", adherents of this position led to the idea that labor legal relationships are made between the guardianship and guardianship authority and the parent. The position of the work of the relationship of adoptive parents and the guardianship and guardianship authority is supported by G.S. Skachkova See: Skachkova G.S. Features of legal regulation of labor of adoptive parents // Labor law. 2003. N 8. P. 27 - 28 .. In her opinion, the education of the child in the receiving family is a certain labor function. Moreover, such work is made by adopted parents for hiring for remuneration paid by them by the guardianship bodies and guardianship, which act in this case as an employer.
Subsequently, with amendments to the editorial office of Article 152 of the SC of the Russian Federation and the legislative acts of the subjects of the Federation on the term, the remuneration of adoptive parents was refused. For example, the Law of the Kostroma region of December 3, 2008 N 410-4-RKO "On Amendments to Some Legislative Acts of the Kostroma Region, regulating the needs of guardianship and guardianship", adopted by the Kostroma Regional Duma on November 25, 2008 in Article 1 indicated the following :
Make into the Law of the Kostroma region dated November 5, 2001 N 27-RKK "On the amount of remuneration of adoptive parents' wages" (as amended by the Laws of the Kostroma region of February 9, 2007, N 118-4-ZKO, dated December 28, 2007 N 242-4- ZKO, dated June 27, 2008 N 324-4-ZKO) The following changes:
1) in the name of the word "wage" to replace the word "remuneration";
2) in Article 1, the words "remuneration of adoptive parents" should be replaced by the words "remuneration due to adoptive parents";
3) in article 2:
name shall be amended as follows:
"The size of remuneration due to receiving parents";
in part 1, the words "monthly pay" should be replaced by the words "monthly remuneration";
in parts 2 and 3, the words "wages" replace the word "remuneration";
in part 4, the words "on the remuneration of adoptive parents" should be replaced by the words "to remuneration due to adoptive parents", the words "federal co-financing of expenses" shall be replaced by the words "federal budget";
in part 5, the words "remuneration of adoptive parents" shall be replaced by the words "payment of remuneration due to adoptive parents.
As it seems to us, Bole will correct to talk about the family legal position on the subject of the legal nature of the adoptive family agreement.
In justification, we present the specifics of the subject of the contract - so, the upbringing of the adopted child in the family of adoptive parents can not be qualified as a civil service. The random provisions of the contract concerning the provision of adoptive families of vehicles, dwellings, other property, the allocation of the land plot, are qualified as minor, random conditions, on which the contract does not depend on the contract, and they cannot affect the family-legal nature of the contract itself. Further, for the subject under study, family legislation identified a special subject. The contract content also confirms his family legal nature. As an argument, it should also be indicated for family-legal liability under the contract. Since the relationship with the adoption of a child in a foster family is mediated by the Treaty, and the sanction for the emergence in the receiving family of unfavorable conditions for the content, education and education of children is the early termination of the contract, there is reason to believe that this responsibility is a family-legal contractual liability. The above confirms the special sectoral specifics of the Treaty for the transfer of a child to education in the adoptive family, the conclusion of which, along with other family-legal treaties, is provided for by family legislation.
The provisions of civil law in relation to such agreements are somewhat indirectly and relate to more private issues that characterize the general conditions of the conclusion of the contract.
For example, the provisions of ch. 20 of the RF IC about guardianship and trusteeship over children. So, in part 6 of Art. 145 of the RF CK states that "a child's device under custody or guardianship is allowed ... including under the adoptive family agreement."
The relationship arising from the Treaty on the adoptive family, in the part that is not resolved by this Code, the rules of civil law on the compensated provision of services are applied, since this does not contradict the essence of such relations. So, st. 779 of the Civil Code of the Russian Federation determines that under the contract of compensated services, the Contractor undertakes on the task of the Customer to provide services (make certain actions or implement certain activities), and the Customer undertakes to pay these services. Since the subject of the Treaty on the transfer of a child (children) to education, which provides for the remuneration of adoptive parents, are actions related, in particular, with the upbringing, content and education of the child, then such an agreement is a type of the contract for the provision of services. This issue of the theory has practical importance if the service turns out to be poorly required to terminate the contract and return the resulting remuneration. I solve this situation, it should be proceeded not only from the requirements of civil legislation, but also the general provisions of Article 4 of the Family Code of the Russian Federation.
Their essence comes down to the following:
Property and personal non-property relations between family members are regulated by family legislation. However, by virtue of the diversity of such relations and the emergence of all new and new life family situations, the legislative regulation of which undoubtedly lags behind the moment of their occurrence, the legislator establishes the rule: if family legislation does not contain the norms regulating the relationship between family members, relevant relations are applied to such relations. Civil law standards, if they do not contradict the merits of family relations.
At the same time, it should be borne in mind that legal relations arising from the contract of the adopted family are personally trusting, which is still closer to the family law.
One of the main signs of the adoptive family is an agreement on the creation of a reception family.
This contract is among the bilateral. One side of the contract is the bodies of guardianship and the guardianship, which are endowed with authority. On the other hand - adoptive parents, and this can be like a married couple and a lonely citizen. If persons are not married, they cannot be parties to this contract.
The contract for the creation of the adoptive family is a fiduciary, that is, wearing personally - trust.
The Treaty of Case and Trustees on a reimbursable basis lies with respect to one or more minors.
The question of the legal nature of the contract is a discussion. Researchers adhere to several points of view regarding the essence of the adoptive family agreement.
Supporters of one position see for labor in it, others refer to civil-related treaties, the third qualify as a family-legal contract, the latter consider the agreement mixed, combining elements of other treaties.
Supporters of the labor nature of relations, for example G.S. Skachkova, argue that the child's education in the family is a certain labor function. Work on the execution of such functions is carried out compensated, i.e. For a remuneration that is paid by the adoptive parents of guardianship and guardianship authorities acting as an employer.
Analyzing the provisions of the Family Code of the Russian Federation, the rules for concluding an agreement on the implementation of guardianship or guardianship, the rules for the creation of the adopted family we conclude that these regulatory acts do not contain information about the work of the work of adoptive parents. Moreover, the term "remuneration" is used, and not "labor payment".
The similarity with the employment contract may consist only in the personal fulfillment of his responsibilities. However, the circle of responsibilities of the guardian is wider than defined by Art. 56 Labor Code of the Russian Federation.
The subject of the Treaty on the admission family indicates that efforts are required efforts to educate, develop, care for the health of the child. In addition, adoptive parents, unlike workers in the employment contract, are free in the time of execution of their duties, do not depend on the working conditions and the rules of the internal labor regulation. Their activity is not limited to certain working hours, but takes all free time.
Provisions of Art. 152 of the Family Code of the Russian Federation talks about the application of civil law rules for the compensated provision of services and legislation on guardianship to this agreement.
Some researchers do not include an agreement on the establishment of a fellow family to any of the types of contracts. For example, S.Yu. CHASHKOV, justifies this position by the fact that the fulfillment of the receiving parents of their duties is compensated. On the other hand, these relationships are obligatory. In this regard, these relationships cannot be identified with civil-related. The state is obliged to concern for children in need of workers in private individuals.
This statement is not quite accurate, here the state reserves the obligations of verification of living conditions, ensuring the safety of the property of the wards and others, assists in satisfying the private interest of citizens.
The essential conditions of the admission family agreement are contained in the articles of the Family Code of the Russian Federation.
In the contract of the admission family, according to the provisions of Art. 153.1 of the Family Code of the Russian Federation should contain data on child or children who are transmitted to education in the adoptive family, in particular the name, age, information on health, physical and mental development. The contract should reflect the provisions on the term of the contract, the conditions of detention, education, child education, or children, the rights and obligations of adoptive parents, guardianship and guardianship authorities. The contract must contain provisions on the foundations and consequences of its termination.
The conclusion of the contract through the representative is unacceptable.
Art. 153.2 of the Family Code defined the procedure for termination of the contract of the adoptive family. This agreement is terminated in the order of termination of obligations in accordance with civil law, as well as in connection with the cessation of guardianship or guardianship.
When changing the place of residence of the child, the contract is subject to termination. The contract for the new place of residence is concluded.
The Family Code contains an open list of valid reasons why adopted parents may refuse the adoptive family contract.
In the presence of illness, a change in the property and marital status, the absence of mutual understanding with the child, the presence of conflicts between children and other reasons.
On the other hand, the guardianship and guardianship authorities may refuse to fulfill the contract, if the family has occurred, the unfavorable conditions for education, education, child development, when the child's return or children is returned or with the adoption of children.
With a significant violation of the terms of the contract by one of the parties, the other party has the right to demand compensation for damages, which are caused by the termination of the contract.
The purpose of the conclusion of the contract on the admission family is to realize the right of a child to education in the family, and not in the receipt of the services by the services for a compensated agreement.
Therefore, much attention is paid to the moral and personal qualities of adoptive parents. The creation of the adoptive family and the realization of the right to family education is subject to property relations arising from the contract. In accordance with the legislation of the subjects of the Russian Federation, the amount of remuneration of adoptive parents is established, as well as social support measures. The amount of these measures depends on the number of children accepted for education.
This contract contains public elements that are manifested in a few points. One side of the contract is the bodies of guardianship and the guardianship, which are endowed with authority. The content of the contract is largely determined by the provisions of regulatory and legal acts. Payment of remuneration of adoptive parents, payments to the content of children are carried out at the expense of the funds of the Russian budgets and municipalities. The termination of the contract is unilaterally possible by the decision of the guardianship and guardianship authority.
Currently, within the framework of this issue, the development and approval of the Unified Form of the Treaty on the transfer of children to education in adoptive families is relevant.
One of the components of the proper education and development of children in the receiving family is the proper material provision of adoptive families by paying remuneration of receiving parents.
To protect the rights and interests of adoptive families, we consider it expedient to supplement paragraph 2 of the rules for the implementation of individual powers of guardianship bodies and guardianship against minor citizens, entrusting authorized organizations to carry out professional support, including legal on the entire validity of the adoptive family agreement.
In addition to the Treaty on the creation of the adoptive family, the contractual regulation concerns the Treaty on the preparation and maintenance of adoptive families. The contract for the accompaniment of the adopted family is trilateral. One side is the body of guardianship and guardianship, the other is an authorized organization, which is engaged in the preparation and maintenance of adoptive families, the third - citizens who have in the upbringing children remaining without parental care.
The content of the contract shall indicate the rights and obligations of the Parties to the Treaty. The basic rights of the guardianship and guardianship authority are: request information from an authorized organization and guardians, which is necessary to fulfill the terms of the contract, the requirement to eliminate violations under the execution of the contract, with the failure of the contract guardians, to initiate its termination. The main responsibilities of the guardianship and guardianship authority are: the implementation of the monitoring of the individual family support program, the dynamics of the child's development transferred to the family education, assisting an authorized organization in drawing up and implementing an individual adoptive family support program, assists the adoptive parents, takes measures to protect The rights and legitimate interests of the child.
An authorized organization under the contract for the support of the adopted family provides legal, consulting, psychological, medical and other assistance to the family in accordance with the individual support program. The contract may be provided for that this assistance is based on an authorized organization, at the place of residence of the adopted family, as well as through mobile communications and Internet.
The authorized organization monitors the development of the child in the receiving family, participates in checking the conditions of his life, and on the basis of this may decide on the adjustment of the individual support program. The organization, carrying out support, is obliged to provide information on the implementation of the individual program of support for the adoptive family. The organization has the right to request information from the guardians and the guardianship and guardianship authority to fulfill the terms of the contract, to attend the family in accordance with the support program and in case of non-observance by guardians the terms of the contract initiate its termination.
Persons who took up a child's education left without parental care is obliged to provide reliable information about himself, a child who is transferred to family education, other family members in the amount necessary to fulfill the accompaniment agreement. The guardians are required to inform the guardianship and guardianship authorities, an authorized organization of changes that are important for the execution of an accompaniment agreement: its data, place of residence, telephone numbers, email addresses. The guardians are required to fulfill the individual support program and ensure families participation in events related to the implementation of this program.
Guardians are entitled to receive legal, consultative, psychological, medical and other assistance in accordance with the family support program, receive information from other parties to the contract of contract terms, timing, purposes expected by family support results, to make proposals for the implementation of the program, participate in the development specified program. The guardians have the right to initiate the termination of the contract with the failure of other participants in its conditions.
Disputes and disagreements arising in the execution of the contract are permitted through negotiations. The controversial issues for which the consent could not be achieved are permitted in accordance with federal legislation and legislation of the subjects of the Russian Federation.
The contract provides for the conditions for early termination. The contract may be discontinued on the initiative of the guardians according to their statements in the absence of the need for support services, on the initiative of the guardianship and guardianship authority and an authorized organization at the failure of the terms of the contract by other parties.
The contract is terminated when the child reaches the child (children) of 18 years or when they acquire full capacity before reaching the age of majority, in case of cessation of guardianship and guardianship, in the case of moving the family to another place of residence, which is located outside the territory on which the operation of the guardianship is distributed and guardianship and authorized organization.
Thus, the foster family activities are carried out under an agreement with the guardianship authorities. The actual problem is the approval of the Unified Form of the Treaty on the establishment of the adoptive family, as well as contracts for the preparation and support of adoptive families.
1. The admission family agreement should contain information about the child or children transmitted to the education in the reception family (name, age, health, physical and mental development), the term of such a contract, the conditions of detention, education and education of the child or children, the rights and the obligations of adoptive parents, the rights and obligations of the guardianship and guardianship authority towards adoptive parents, as well as the grounds and consequences of the termination of such a contract.
2. The amount of remuneration due to adoptive parents, the amount of funds for the maintenance of each child, as well as social support measures provided by the adoptive family, depending on the number of children adopted on the education, are determined by the contract on the admission family in accordance with the laws of the constituent entities of the Russian Federation.
Comment to Art. 153.1 SC of the Russian Federation
1. The considered family agreement under consideration, as noted above, is a special case of a compensated service agreement. The subject of this contract are actual and legal actions. This is a specific service, which includes the maintenance of legal representation, as well as the protection of the rights and interests of the child and the action to educate, the content and education of the child.
The contract on the admission family is an agreement in favor of a third party. In it, the ward opposes the adoptive parent as a lender and in accordance with the agreement, which is not involved in the conclusion, has rights, in particular the right to demand from the Contractor (adoptive parent) of damages caused by the improper performance of their duties. Such a right is implemented, as a rule, with the termination of the adopted family of the fault of the guardian (trustee) and is carried out through the actions of the guardianship body and guardianship, temporarily performing the functions of the representative office, or a new representative of the ward.
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Such an idea of \u200b\u200bthe contracts in favor of a third party was expressed in the literature. See, for example: Braginsky M.I., Vitryansky V.V. Negotiated law: General provisions. M., 1997. P. 292.
The legal relationship of the adoptive family is personally confidential. From the receiving parent requires personal execution of duties under the contract. In addition, this agreement may be terminated due to such circumstances as a disease, a change in the family or property position of the adoptive parent, the lack of mutual understanding with the child, conflict relations between children, etc. (paragraph 2 of Art. 153.2 SC).
2. The procedure for entering into a contract for the admission family is determined by the Decree of the Government of the Russian Federation of May 18, 2009. N 423. In accordance with the ordinary decree, the guardianship and trusteeship body provides citizens who expressed the desire to take a child for education in the adoptive family, information about a child who could be He was transferred to the education in the reception family, and issues a direction for visiting the child at his place of residence (location).
In a special sub-banner act - the rules for creating a receptional family and monitoring the living and education of the child (children) in the receiving family - norms that determine the procedure for entering into an agreement on the admission family, are not defined. However, since the contract on the admission family is one of the types of contract for the implementation of guardianship or guardianship, to be applied the rules for concluding an agreement on the implementation of guardianship or guardianship against a minor ward, in accordance with paragraph 3 of which the contract is concluded at the place of residence of the ward and guardian during 10 days from the date of adoption by the guardianship and trusteeship body at the place of residence of a minor citizen of decisions on the appointment of the guardian. However, it is necessary to note that the wording used in this subtode act is contrary to common sense, since, as a rule, the place of residence of the ward does not coincide with the place of residence of the guardian. In this regard, paragraph 1 of Article should be applied. The 35 Civil Code of the Russian Federation, in accordance with which the guardian or the guardian is appointed by the guardianship and guardianship authority at the place of residence of the person in need of care or guardianship. If the circumstances of the guardian or the trustee deserving the circumstances may be appointed by the guardianship and guardianship authority at the place of residence of the guardian (trustee). This provision means that the adoptive family agreement should be at the place of residence of the ward and in these cases - at the place of residence of adoptive parents.
If, when concluding a contract between the parties, disagreements arose, the guardianship and guardianship authority, which received a written proposal for coordinating the controversial conditions, for six days from the date of receipt of the proposal takes measures to coordinate the terms of the contract or notifies the guardian in writing On refusal to conclusion.
With the change in the place of residence, the contract is terminated, and the body of the guardianship and the guardianship for its new place of residence is a new agreement.
Requirements for the personality of the adoptive parent are similar to the requirements for the personality of the guardian (trustee). Candidates for adoptive parents should also undergo a medical examination in accordance with the Regulations on the medical examination of a citizen (s) who wants to become a adopter, a guardian (trustee) or a foster parent, approved by the Order of the Russian Ministry of Health of September 10, 1996 N 332.
In accordance with the Federal Law "On the State Bank of Data On Children left without parental care" candidates for adoptive parents who received a positive conclusion of the guardianship body and guardianship to be adoptive parents, without finding a child within the municipality, can turn to federal, as well as to regional state bank operators of data on children who remain without parental care. Looking for accounting in the relevant bank, the candidate for adoptive parents will be able to obtain information about other children in need of a device in a reception family.
In accordance with paragraph 11 of the policies of the selection, accounting and preparation of citizens who expressed the desire to become guardians or trustees of minor citizens or to adopt children left without parental care, in a family of education in other established family-established forms, conclusion about the possibility of a citizen to be a guardian ( Reception Parent) Really for two years from the date of his issuance and is the basis for the appeal of this citizen to the guardianship and guardianship authority at the place of their residence, to another body of guardianship and guardianship in its choice or to the State Database Data Bank remaining without parental care. .
- information about child or children transmitted to education in the reception family (name, age, health, physical and mental development);
- Term of the Treaty on the Admission Family;
- the rights and obligations of adoptive parents;
- the rights and obligations of the guardianship and guardianship authority in relation to adoptive parents;
- the grounds and consequences of the termination of the contract on the admission family.
At first glance, all these conditions are the essential conditions of the contract on the adoptive family. However, it should be borne in mind that the basic rights and obligations of adoptive parents, the basis of termination of the contract and some other conditions are predetermined by law.
In addition, the Law on Guardianship (Art. 15) provides for the inclusion in the agreement of the foster care of additional conditions.
The guardianship and guardianship authority in order to take into account the individual characteristics of the Personal Child Personality to additionally indicate in the contract:
- individual actions that the guardian or trustee do not have the right, including the change in the place of residence of the ward;
- Mandatory requirements for the rights and execution of the responsibilities of the guardian or trustee, including such requirements that determine the specific conditions for the education of a minor ward (the frequency of visiting sports activities, consulting a psychologist, medical examination, meetings with child relatives, etc.).
4. Important for the development of the institution of the adoptive family as a paid form of guardianship (guardianship) is the question of the amount and procedure for payment of remuneration parents under the contract. The answer to it is given in paragraph 2 of the commented article.
For example, in accordance with the Law of the Moscow Region dated October 31, 2008, N 162/2008-OZ "On the remuneration of guardians, trustees, adoptive parents and measures of social support for adoptive families", each adopted parent for raising a child adopted in the receiving family is paid monthly Remuneration in the amount of 9200 rubles per child. For the upbringing of a child adopted in the foster family and under the age of three, a child with disabilities, a disabled child, the amount of remuneration increases by 3450 rubles; If there are two or more of these grounds - by 4,600 rubles. In addition, the receiving family once a year is paid financial assistance to the organization of children in the amount of 4,600 rubles for each adopted child or compensate for the cost of purchasing vouchers for a joint recreation with children in the amount of 6900 rubles for each member of the reception family.
Based on the Law of the Murmansk region dated January 10, 1999, N 126-01-ZMO "On the amount of remuneration of receiving parents and benefits provided by the receptional family" for the education of each adopted child, the guardianship and guardianship authority pays to both adoptive parents cumulatively 5 thousand rubles per month with the accrual of district coefficients and interest rates established for work in the areas of the Far North and equivalent to them areas, and for the upbringing of each adopted child who has not reached a three-year-old age, or a disabled child, or a child with disabilities confirmed by the conclusion of regional psychological The Medical and Pedagogical Commission, the specified payment amount increases by 50%. At the same time, in accordance with this law, the adoptive family, who adopted no less three adoptive children and having the necessary residential premises is provided by local government agencies for the period of contracts for the transfer of children to education in the receiving family of residential area on existing standards. In addition, the adopted family who adopted at raising at least five adoptive children or at least three reception children with disabilities is provided by local self-government authorities on the conditions specified in the contracts for the transfer of children to education in the receiving family at the time of these treaties.
SAMPLE
Contract No.
About the reception family
The guardianship and guardianship authority - the municipality of the Intorodsky municipal formation of SUVELKI in the city of Moscow, referred to as the guardianship and guardianship authority, Yudakhina Irina Vasilyevnaacting on the basis of the situation and citizen Aaaaaaaa Aaaaaaa AaaaaaaaaaaaFurther, hereinafter referred to as the "Reception Parent", concluded this Agreement on the following:
1. The Subject of the Agreement
1.1. In accordance with this Agreement, the receiving parent undertakes to adopt a Baby Boy of AAAAAA AAAAA, 11/11/1111, 11/11/11 No. Issued by the SSMMIKOV G. AAAAA 11.11.1111, (physical development Average, group Health - 1, mental development A 00.0. A 00.0. A 00.0) Next "Reception Child", and the guardianship and guardianship authority undertakes to convey a receiving child for education in a selection family.
1.2. The receiving parent carries out its responsibilities for care (guardianship) on paid conditions.
2. Rights and obligations of a receiving parent
2.1. A receiving parent with respect to the reception child has the rights and obligations of the guardian (trustee).
2.2. The receiving parent is a legal representative of a reception child.
2.3. The receiving parent receives a cash remuneration, as well as funds for the maintenance of a reception child, other payments and uses social support measures provided in the manner prescribed by the legislation of the Russian Federation and the city of Moscow.
2.4. A receiving parent is obliged to educate a reception child, take care of his health, moral and physical development, to create the necessary conditions for education, to prepare him for independent life, including:
protect life and health, respect the human dignity of the receiving child, to observe and protect his rights and interests;
ensure the cohabitation with the foster child, put it on the registration account of the place of residence;
provide full regular care for the receiving child in accordance with its individual needs, including to ensure that a receiving child is regularly climbing, if necessary, a timely manner to a medical examination, as well as organize treatment;
organize the formation of a receiving child in educational institutions of all types;
monitor the performance and attendance of educational institutions by a reception child;
fulfill the obligations to protect the rights and legitimate interests of the ward, to provide information on the fulfillment of their duties at the request of the guardianship and guardianship authority;
if necessary, perform an individual program of rehabilitation of a child in a reception family, developed jointly with the guardianship and guardianship authority;
do not interfere with the personal communication of the receiving child with his blood relatives, if it does not contradict his interests, normal development and upbringing;
take the property of the ward according to the inventory, take measures to ensure the safety of the property of the ward in accordance with the legislation of the Russian Federation and the city of Moscow, including to spend the amount of alimony, pensions, benefits and other social benefits provided to the maintenance of a receiving child only in its interest;
immediately notify the body of the guardianship and guardianship on the occurrence of adverse conditions for the content, education and formation of a receiving child in the receiving family.
2.5. The parent parent every year no later than February 1 of the current year is in the guardianship and trusteeship body in writing for the previous year on storage, on the use and management of the property of a reception child.
2.6. In the case of removal from its duties on the grounds provided for in this Agreement, a reception parent must provide a report no later than three days from the moment when it was notified of the indicated removal.
2.7. The following rights have the following rights:
receive information on the state of the physical and mental development of a reception child, information about his parents;
receive advice in matters of education, protection of the rights and legitimate interests of the reception child;
independently determine the forms of detention, education and formation of a receiving child, including its routine of the day in compliance with the requirements established by the legislation of the Russian Federation, the city of Moscow, as well as this Agreement;
solve current issues of the life of a reception child;
2.8. The reception of a receiving parent cannot be carried out in contradiction with the interests and rights of a reception child;
2.9. In carrying out their rights and obligations, the receiving parent is not entitled to harm the physical and mental health of the child, its moral development.
2.10. With the temporary absence of a receiving child at a place of residence, in particular in connection with the study or stay in a medical organization, staying in places of serving the punishment, the rights and obligations of the receiving parent.
3. Terms of detention, education and formation of a reception child
3.1. The receiving parent raises a receiving child based on mutual respect, organizing a common life, leisure, mutual assistance, creates the conditions for the child's education, takes care of his health, physical, mental, spiritual and moral development.
3.2. A receiving parent creates a receiving child with respect to sanitary and hygienic standards housing and living conditions, and also provides full-fledged high-quality meals in accordance with existing standards and sanitary, hygienic requirements.
3.3. Methods of education of the receiving child should exclude disdaining, cruel, coarse, degrading human dignity, insult or operating a receiving child.
3.4. The development of the abilities of a receptional child is provided by methods that allow you to develop its independence in solving creative and other tasks, as well as allowing it to be successful in different activities, including training.
3.5. The activities of the receiving child in their free time (occupation) time is organized taking into account the features of his health, interests and should be directed to the satisfaction of the needs of the receiving child, including physiological (in sleep, nutrition, rest, in the fresh air ), cognitive, creative, communication needs.
3.6 A receiving child is entitled to use the property of its reception parent with his consent.
3.7 A receiving child does not have property rights and inheritance to the property of the receiving parent.
4. Rights and obligations of guardianship and guardianship authority
With regard to a reception parent.
4.1. The guardianship and guardianship authority provides the necessary assistance to a reception and control over the living conditions and education of the receiving child, the fulfillment of the receiving parents for maintenance, education, the expenditure of funds allocated for the maintenance of the child and its personal funds.
4.2. The guardianship and guardianship authority undertakes:
implement in the manner and within the deadlines established by the legislation of the Russian Federation and the city of Moscow, checking the living conditions of the receiving child, compliance with the receiving parent of the rights and legitimate interests of the receiving child, ensuring and the preservation of its property, as well as the fulfillment of the receiving parent of the Terms of this Agreement;
promote the creation of normal living conditions and upbringing a child in a selection family;
if necessary, immediately assumes a reception family, including psychological and pedagogical;
consider disputes and determine the procedure for communicating a receiving child with blood relatives, based on his interests and taking into account the interests of the reception family;
4.3. The guardianship and guardianship authority has the right:
request from the receiving parent any information necessary for the implementation of rights and obligations under this Agreement;
to oblige a receiving parent to eliminate the violated rights and legitimate interests of the reception child;
in order to take into account the individual characteristics of the personality of the receiving child, to establish mandatory requirements and restrictions on the implementation of the rights and execution of the duties of the receiving parent, including the specific conditions for the education of a receiving child.
4.4. The guardianship and guardianship authority has the right to remove the receiving parent from the execution of duties assigned to him in the case of:
improper performance of responsibilities assigned to him;
violations of the rights and legitimate interests of the receiving child, including in carrying out a receiving parent of actions for mercenary purposes, or when leaving a receiving child without supervision and necessary assistance;
detection by the guardianship and proceedings of the facts of a significant violation by the receiving parent established by the Federal Law or the Treaty of Protection Rules for the Property of the Reception Child or the disposal of their property.
4.5. The guardianship and guardianship authority gives a receiving parent of permission and mandatory to fulfill the instructions in writing in relation to the disposal of the property of a reception child.
5. Remuneration of the receiving parent.
5.1. For the execution of their duties, a receiving parent is paid to the remuneration on the basis of the act of the guardianship and guardianship authority.
5.2. The monthly remuneration of the reception parent is set in the amount equal to 15155 (fifteen thousand one hundred and fifty-five) rubles.
The remuneration of the receiving parent (adoptive parents) is subject to indexation in the manner and deadlines that are established by the Government of Moscow.
5.3. The right to remuneration at the receiving parent arises from the moment of the conclusion of this Agreement.
5.4. The procedure for payment of remuneration to a receiving parent is determined in accordance with the legislation of the Russian Federation and the city of Moscow.
6. Responsibility of Party
6.1. The receiving parent is responsible for transactions committed on behalf of a reception child, in the manner prescribed by civil law.
6.2. A receiving parent is responsible for harm caused by his fault of the person or the property of a receptional child, in accordance with the rules of responsibility provided for by civil law.
6.3. The receiving parent is criminally liable, administrative responsibility for its actions (inaction) in the manner prescribed by the current legislation of the Russian Federation.
6.4. The harm caused by the receiving child as a result of the illegal actions or inaction of the guardianship body and the guardianship, including the publication of the custody and guardianship, which is not relevant to the legislation, is subject to compensation in the manner prescribed by civil law.
7. Term of the contract, grounds and consequences of termination of the contract
7.1. This contract is concluded before reaching the age of 18 years and comes into force from 00 March 1111.
7.2. This Agreement is subject to termination during a two-day period from the moment of notification of the receiving parent about the change of the place of residence of the admission child.
7.3. This Agreement may be terminated early:
At the initiative of a receiving parent in the presence of good reasons (diseases, changes in the marital status, worsening material well-being, the absence of mutual understanding between the receiving parent and a receiving child);
On the initiative of the guardianship and guardianship authority in the event of adverse conditions in the receiving family for the detention and education of the child;
In case of returning the child to parents, adoption of the child;
By mutual agreement of the parties;
In case of non-fulfillment without valid reasons for the conditions of this Agreement;
For other grounds for the cessation of guardianship and the guardianship, provided for by the current legislation.
8. Final provisions
8.1. Disputes arising between the parties in the process of executing this Agreement are viewed by the parties within 14 days from the date of their occurrence in order to take a coherent decision, and if the agreement is not attached to the Court's permission.
8.2. The contract is drawn up in two copies, each of which has the same legal direction.
8.3. All changes and additions to this Agreement must be decorated in writing and signed by the parties.
9. Details and signatures of the parties