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Separation of children between parents. Divorce and children: with whom and why? Legal aspects of the divorce proceedings

It is said that children suffer the most when parents divorce.

In most cases, the child loves both parents and dreams that his family would be complete, and everyone would live in harmony.

But there are also exceptions.

If the spouses realized the impossibility of further cohabitation and decided to divorce, they need to determine the place of residence of the children.

Ideally, this is done by drawing up an agreement for the children. It is the most civilized and least painful way"Divide the children."

The spouses draw up a document in which they prescribe all the nuances concerning the place of residence of the children, the participation of each parent in upbringing, the costs of children on the part of the mother and on the part of the father.

If a dispute arises between the parents about which of them the child will live with after the dissolution of the marriage (or children, if there are several of them), they should apply to the court with a corresponding statement.

Cases on determining the place of residence of minors are considered by federal (district) courts. At the same time, the division of children by court takes place with the obligatory participation of the guardianship and guardianship authorities.

How to draw up a statement of claim for the division of children?

The parent's statement of claim on the determination of the place of residence of minor children must contain:

  • The name of the court to which it is filed;
  • Surname, name, patronymic of the plaintiff, his place of residence. If the application is submitted by a legal representative, it is necessary to indicate his full name and address;
  • Name and place of residence of the defendant;
  • The name of the third person who is involved in the consideration of the case (for example, the guardianship and trusteeship body), its location;
  • Surname, name and patronymic of the child, his date of birth, address of registration and actual residence;
  • Statement of the essence of the dispute. On what grounds should the child live with this particular parent and not with the other parent? Description of violations that took place. For example, violation of the plaintiff's right to personal upbringing of the child, violation of the child's rights to receive appropriate upbringing, education, living in favorable conditions;
  • A statement of all the circumstances on which the plaintiff's claims are based, as well as evidence that confirms these circumstances;
  • The list of documents that are attached to the application, as well as the signature of the person who is filing the claim.

Within two months from the date of receipt of the application, the court is obliged to consider it.

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If you think your child will be better off with you, get the support of a specialist, regardless of whether you are the plaintiff or the defendant. will not only help you draw up a statement of claim, but will also represent your interests in court, prove that the child will be better with you.

Judicial procedure for the division of children

Carrying out the division of children upon divorce, the court, in accordance with Article 78 of the RF IC, is obliged to involve the guardianship and trusteeship body in the consideration of the case.

By the way, such a concept as "separation of children" is not used in judicial and legal practice. The court determines the child's place of residence and the order of his communication with the father and mother, and does not divide the children between the parents.

The guardianship authority is obliged to examine the living conditions of the child and persons who apply for his upbringing. The examination report is submitted to the court.

This document is the basis for the conclusion of the guardianship and guardianship authorities on the merits of the dispute. In addition to the opinion of the guardianship authorities, the court takes into account such circumstances as the child's attachment to each of the parents, the possibility of creating conditions for the child's development, the situation that has developed in the place of residence of each parent, moral qualities parents, their lifestyle.

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The occupation of the father and mother, and the mode of work, and financial situation everyone. If parents live in different cities, the crime rate is taken into account and even climatic conditions in every locality. In addition, the Family Code obliges the court to take into account the opinion of the child if he is already 10 years old. And in many cases this opinion is decisive.

Thus, the determination of the child's place of residence through the court is a rather complicated process that is best done with.

And you need not only his professional understanding of the essence of the issue. Enlisting the support of a lawyer, you are calmer in emotionally go through the procedure for determining the place of residence of your child. And for a positive outcome of the case, this is important.

On May 5, Russian President Dmitry Medvedev approved amendments to Family code... As we wrote earlier, from now on, according to the law, at the time of the parental dispute over who the child will remain with, the child's place of residence will be determined by the court.

In addition, for obstructing communication with a child to the other parent (including deliberately hiding the whereabouts of children), a penalty of 2,000 rubles is imposed, up to administrative arrest for a period of 5 days.

We asked our expert, lawyer Nadezhda Grebennikova to tell us about how the new legislation will affect the decision-making by the court and the lives of children and parents.

- What is the main point of the new initiative? Do you think it will work?

To minimize the so-called parental conflicts when one of the parents wants to communicate with the child, but is deprived of this opportunity.

Parents' disputes about children in courts last for a very long time, while each of the parents considers himself entitled to raise a child and communicate with him.

V recent times there are more cases when one of the parents deliberately hides the whereabouts of the child from the other, does not allow the other parent and close relatives to communicate with him, ignores court decisions and agreements on the implementation procedure parental rights... All this causes irreparable harm to the child's psyche and health.

Punishments for such actions were not provided for by our legislation.

Of course, neither court decisions nor administrative penalties will be able to resolve family conflicts... Moms and dads should agree on their own, thinking about children, not to abuse their rights.

- What actions will fall under the definition of "intentionally hiding a child"?

Intentional concealment should describe cases when, for example, fathers pick up children from schools and take them away in directions unknown to mothers, take strollers with children from mothers on walks. V last years family scandals and restrictions on the rights of mothers who cannot see their children because of the influence of fathers have become not uncommon.

And how will disputable situations be assessed? For example, dad didn’t appear for a long time, and when he did, he couldn’t talk to him: is the child on vacation with his mother’s relatives?

If dad is "impatient" to see the child, and he unexpectedly appears, the child has gone on vacation - what is mom's fault here?

If by a court decision it is established certain days for communication between the child and the dad, and the mother ignores the conditions, leaves without warning, this can already be considered as an administrative offense. So, when determining the terms of an agreement on the procedure for communicating with a child, I advise you to provide for his departure on vacation.

In the event that the father does not visit the child on the appointed days, the mother can report this to the guardianship and guardianship authorities. If dad suddenly remembered his rights, and the child at this time, for example, at the dacha, mom will be able to prove her innocence. To do this, she will need to provide a statement about the non-attendance of the child by the father on the days assigned to him.

Administrative responsibility can be brought only for deliberately concealing the location of the child or relocating him against the will of the second parent.

- How is the new initiative assessed by the judges and the prosecutor's office?

Determining the child's place of residence and the procedure for exercising parental rights belong to one of the complex categories of civil cases. Even after a court decision or ruling approving settlement agreement, disputes between parents not only do not stop, but often lead to critical situations... Therefore, I think the judges and the prosecutor's office will take the amendments made to the legislation positively.

- What will the judges be guided by when determining the child's place of residence during the trial?

The ruling of the court is made on the basis of the conclusion of the guardianship and guardianship authority and with the obligatory consideration of the child's opinion.

Taken into account different factors: the child's attachment to each of the parents, to brothers and sisters, the qualities of the parents, their mode of work, material and marital status, their ability to create conditions for the child's upbringing and development.

I think that when determining the place of residence of children for the period of consideration of a civil case, the issue of the place of residence of a child before a decision is made will be resolved in the same way.

- Will the mother still have priority?

The legislation stipulates that parents have equal rights. In this case, as a rule, children are usually left with their mother. This is due to the attachment of children to their mother. During the cloudless family life when the father tries to earn more and feed the family, it is the mother who spends more time with the child.

But it also happens in another way. Now decisions to transfer the child to the father are no longer uncommon. The court considers each case taking into account the interests of the child and only after clarifying all the circumstances, decides the question of his fate.

Does this initiative mean that the child's place of residence, determined at the time of the trial, will most likely not change after the end of the trial?

There are no guarantees for this, because during judicial trial circumstances in the case that were not known at the stage of the preliminary hearing will be clarified.

There are many unpleasant consequences caused by such a procedure as divorce proceedings. Negative emotions related to the distribution of property values ​​will never be compared with the emotional experiences that divorcing spouses have to experience when there is a minor child in their family.

Separation of children upon divorce is a huge responsibility placed on parents, because the future fate of their child depends on it. And how can the division of a living person be realized, who equally needs communication, both with the father and with the mother. When parents get divorced, children experience a strong psychological shock, and it is very important not to aggravate the situation with arguments, but to do everything in order to minimize their experiences.

According to legal regulations family law, children do not divide upon divorce, and this is natural, but it is determined with which of the parents they should live on a permanent basis.

There are two possible options conducting a divorce procedure in those families where the child is being raised. It could be a peace agreement, in best case, or a lengthy divorce process, in which the decision will be made by the court, and not by the parents.

Compromise between parents

When the spouses decide to divorce, but they are responsible for providing for the children, it will be correct to resolve all differences among themselves, while making up written contract... In this case, none of them will have to wonder how children are divided in a divorce and defend their rights in court.

If the spouses are able to reasonably assess the situation and agree on who, upon divorce, will get the right to live together with the children, then an agreement is concluded between them, which should indicate:

  1. The exact address of the child's permanent place of residence (determined according to the registration of the father or mother).
  2. Details regarding the possibility of meeting with the second parent. The frequency, the amount of time, and also the place where they will occur is specified.
  3. The role of each of the divorcing spouses in the organization of the educational process.
  4. The amount of material resources aimed at ensuring the life of the baby.

When drawing up a contract designed to separate rights and obligations, you need to take into account all, even the smallest, details.

In order to avoid problems in the future, it is advisable to notarize the document and make three copies. Two of them will be with the parents, and one must be left to the employee of the notary office. If these conditions are met, change anything in unilaterally, it will be impossible.

If such a compromise does not violate the rights of the child during the divorce of the parents, then it will be approved during the process in the magistrates' court. Otherwise, the decision about who the children stay with will be made after all the details have been clarified. personal life spouses.

The claim for the division of children in the city court

If the spouses have developed completely unfriendly relations, and ambitions prevent them from agreeing on the future of their children after a divorce, then employees of state bodies are involved in the case.

To organize the trial, one of the parents should file a statement of claim and apply to the reception office of the city (district) court. In the claim, you must definitely indicate your opinion on how to divide the children in case of divorce, as well as provide the necessary evidence to substantiate this request.

It should be borne in mind that the court is guided exclusively by those legal norms, which stipulate the rights of children in case of divorce. This means that the collateral optimal conditions for the full development of the child, will exceed the personal wishes of the parents, based only on emotions and affection, although they will not be left without attention.

In order to divide the children exactly as you want, you need to seriously prepare for the hearing in court, and for this you need to know what issues will be considered during its holding.

Issues considered by the court when dividing children

After the court accepts all the documents, a time is appointed for the consideration of the case. It is possible that the meeting will be preceded by a three-month period determined by the spouses for reconciliation. After this time, the whole procedure will take place in established by law okay.

V court hearings, aimed at determining who the children will remain with in case of divorce, an employee of the guardianship authorities must be present, who monitors the observance of the legal interests of the minor.

Obligatory circumstances to be considered in court are:

  1. Parents' opinion. The fact of attachment to the child of each of the spouses separately is established. The sincerity of intentions aimed at maintenance and education is clarified. The degree of communication and the presence of common interests with children before the citizens decided to divorce. If it is proved that one of the parents was never interested in the development of the child in the past, then such a circumstance will significantly affect the results of the trial.
  2. Daily behavior and personality characteristics. The moral qualities of the parents are checked, namely:
    - the use of alcohol and drugs;
    - dependence on any kind gambling;
    - the presence of addiction to periodic visits to drinking establishments or gathering noisy companies;

    3. In general, everything that can negatively affect the life of children is assessed.

  3. Mental state and balance. The fact of presence in educational process aggression on the part of the parent. Will negatively affect frequent use antidepressants, and even more so, being treated in a neuropsychiatric dispensary.
  4. Responsibility level. It is unacceptable to leave a child unattended, or with those adults who are not competent in this matter.
  5. Material security. It is very important that the parent with whom the child will stay after the divorce has the opportunity to cover expenses related to education, entertainment and other needs related to full development personality of the baby.

It is impossible to say unequivocally who will get the child in case of divorce, because each specific case provides for individual characteristics.

In addition to studying information related to the personalities of the parents, the judge can listen to the opinion of the children themselves. However, this requires that their age reaches ten years. Such arguments are not fundamental, but they will be sufficient to make a decision if there are doubts about the veracity of the testimony of the spouses.

Involvement of social workers

In exceptional cases, in order to deliver a fair verdict, the court will send a request for a commission, which will include teachers and psychologists.

With the help of an expert commission, additional information concerning inside family relations spouses before divorce.

The decision is made on the basis of an act drawn up by the guardianship officer, as well as the opinion of independent citizens who are able to assess the situation without the presence of any emotions.

Divorce itself does not pose a legal difficulty, but only if the spouses do not have any disagreements. If the parents are not able to independently decide how and with whom the child will live, then the situation becomes very confusing. In order to avoid unnecessary negativity, as well as to take into account all possible subtleties, it is advisable to contact a specialist.

Divorce concerns not only the relationship between a man and a woman, but also the condition of their children. Often, for some of them, divorce turns into psychological trauma, which cannot always be cured. The child is especially threatened by such an outcome when the parents cannot solve the conflict peacefully, they swear all the time, sort things out and argue.

In the process of divorce, two main questions arise: how to divide the property and with whom will the children live? Moreover, the solution of the first problem is not paramount, in this regard, the law clearly regulates the distribution of property acquired in marriage, moreover, it allows for a special agreement. Much more serious difficulties arise when solving the issue of raising children.

The whole seriousness of the problem lies in the fact that the incorrect distribution of roles in raising a child, that is, leaving him under the care of the wrong parent, can lead to an almost broken life of an unformed personality.

That is why the decision concerning children is of paramount importance in comparison with the division of property, and is obligatory for adoption in the judicial process.

To divide children, in the literal sense, means to distribute them among the parents. A similar procedure applies when there is more than one child in the family. And this process clearly regulated by Russian law.

The resolution of the question of who the children will live with is based on several main principles:

  • In the case when the family has two children, then usually each of the parents gets the right to live with one of them. That is, the children stay with both the mother and the father;
  • In the case when the child is already ten years old, he has the right to decide for himself with whom to live;
  • In the case when there are several children in the family and they are of different sexes, the boys are usually left with their dad, and the girls with their mother.

It is not uncommon for spouses to find that having several children will make it much easier to separate them. However, it is not. The court always considers the fate of each of the children in a separate order.

In this case, the following circumstances will be taken into account:

  • The opinion of both children and parents, but in the case of a child, his desire will be of interest to the court only when he turns ten;
  • The financial situation of both mother and father;
  • The presence of a criminal record, mental illness and other similar deviations.

When deciding the issue of a child's residence, the judge always takes into account each of the circumstances in the aggregate and determines the most convenient option for him. Among other things, it may happen that the children are divided between the parents. This also happens taking into account the most favorable environment for them.

Can children be divided in case of divorce?

It is not uncommon for a family to have several children. There is a misconception that in such a situation, the court acts on the principle of "equal shares", that is, proportionally distributes the children between the parents. It’s not like that. This would indicate that the court does not consider living conditions and other circumstances, but simply blindly divides the children, which is unacceptable.

Regardless of how many children there are in the family, each parent has the same rights and the court will individually consider the options for the child's further residence with one of the parents.

That is, the division of children always relies on objective circumstances, which include the following:

  • The interests of the child, which primarily relate to how much time each parent will be able to spend with him, how much attention will be provided to him;
  • The standard of living of each of the parents, as well as their ability to maintain existing positions, including material ones;
  • The father's desire, which should be clearly expressed, for example, he takes the initiative in paying alimony or participates in the upbringing of the child.

A striking example from practice is the situation when the court left an eleven-year-old boy with his father, since he was strongly attached to him, and a seven-year-old girl with her mother, since, due to her age, a woman's participation in upbringing was necessary.

Plus, psychological examinations are often carried out, which, with some degree of probability, can show the child's attachment to one of the parents. Also, there are often cases when both children, if there are two or even more, are left to one parent.

This is due to the fact that the separation of children can adversely affect their development, upbringing, learning process and other similar moments.

How to separate children when parents divorce?

Legislatively, there are only two methods of resolving the issue of how children can be divided between spouses. Initially, they must turn to the magistrate, who deals with the issues of divorce.

And he, in turn, can offer two solutions to the problem:

  • An amicable agreement, which is proposed for the conclusion of the spouses, including if a dispute arises over the residence of joint children;
  • Contacting district court... Only this authority will be able to judicial procedure resolve the dispute regarding the residence of children, and also immediately establish the rules for the payment of alimony.

When it comes to the agreement between the spouses, it is considered the most the right way resolve all issues arising in the divorce process. A sample agreement can be viewed

Such a document may contain the following conditions:

  • Who the child will live with;
  • The order of meetings with the child of the other parent up to hours and specific days communication;
  • The procedure for fulfilling the obligation to support and educate any of the parents;
  • Expenses that will be borne by each parent and which can only be directed to the child.

WITH psychological point view, it is best to resolve all issues on initial stage divorce. Parents usually do not translate any conversation into scandals and controversies. So there are more opportunities to peacefully negotiate and find a compromise about the child.

However, in the event that an agreement still did not work out, the only way out is a trial.

Speaking about the division of children through the courts, it should be noted that, first of all, this instance refers to the Federal Law "On the Protection of the Rights of the Child", as well as many other regulations of a similar nature.

Proceedings begin in this form when the former spouses have not been able to find a compromise, the questions about the children have not been resolved, which means that the only way out is the court.

Moreover, when making a decision, the judge looks not only at the interests of the child, but also at certain conditions:

  • The desire of the children matters for the court, however, there is a limitation - the age, the child must be at least ten years old, in the case when he has not reached this age, most often he is left with his mother;
  • The desire of the father and mother, whether they want to be with the child sincerely or are pursuing some selfish goals;
  • Financial aspects, as well as the characteristics of each of the parents from a moral point of view;
  • The territory where this or that parent lives, amenities, infrastructure, and so on;
  • The environment of each of the parents, the social environment in which they live;
  • Other similar circumstances.

It is also important to pay attention to the intentions of the father, who may simply take the children from her out of revenge or anger at the mother.

You should go to court by filing an application. It must necessarily contain the reasons, circumstances and conditions on which one of the parents wants to keep the child.

All available facts about the life of the child, his future, and also the second spouse are also reported. It is immediately necessary to indicate the alimony, which can be done at the expense of a specially prepared document.

The participation of the guardianship and guardianship authorities is mandatory when it comes to ending family relations between people with common children. This is necessary in order for the specialist to study the conditions in which the children lived, in which they will live if they stay with their mother or father.

The opinion of the guardianship and guardianship authorities will also necessarily be taken into account by the judge. For its registration, a special act is drawn up, reflecting the results of the study.

In addition, psychological examinations are carried out. They help to display the situation and relationships in the family, attachments, levels of communication, and so on in the most colorful way. Not only the condition of the child is being investigated, but also of the parents.

Teachers can also be involved, who, by research, draw conclusions about what were the conditions for the learning and development of the child. All this is confirmed by the corresponding conclusion.

Enough urgent problem spouses who have decided to dissolve the marriage are disputes about children. It is worth noting that in many cases the problem of dividing children is associated not so much with the desire to give the best living conditions for the child as with the desire to infringe ex-spouse... Thus, the question arises as to how, after the termination marriage relations to provide children good conditions life.

Division of children in divorce - how is the dispute resolved?

In accordance with the legislation (Art. 24 of the RF IC), upon registration, the court determines the parent with whom the child will stay after the termination of the marriage.

Note!By legislative provisions both spouses have equal responsibilities and rights in relation to children, neither of them has advantages over the other.

How do children share in divorce?

In accordance with the law, the division of children upon divorce can be done in 2 ways:

  • the creation of an amicable agreement between the parents on all controversial points for children;
  • appeal to Judicial authority to determine the child's place of residence, the procedure for communication and participation in his upbringing, the costs of maintaining the children of each of the parents and other issues.

Signing of the amicable agreement of parents on children in the event of divorce

An amicable agreement is the most civilized and painless way for both the child and the parents to separate children. In ordinary writing, spouses can provide for all the nuances that relate to the question of how to divide children in case of divorce:

  • the child's place of residence is with the mother or father;
  • the frequency, location and duration of meetings with the separated parent;
  • participation of mother and father in upbringing;
  • the cost of maintaining the child of each parent.

It is good if the parents can come to an agreement about who the child will be raised by. This should be done when the spouses have not yet lost mutual respect, assess the situation sensibly, and also put the interests of the children above their own, and do not lead to mutual claims and grievances that prevent a compromise.

Note! If the settlement agreement of the spouses does not contradict the interests of the children, the magistrate will approve it by his own decision.

Trial

The dispute about how children share in divorce often arises on the basis of interpersonal claims of spouses, who, under the guise of the interests of children, are trying to prove to each other that they are right. If questions about children give rise to disagreements that cannot be resolved peacefully, spouses have to go to the courts. They may have to fight long and hard for their child. The judge is guided exclusively by the interests of the children.

In a divorce lawsuit, you need to state the circumstances of family life and present to the court convincing arguments about who the child should live with after the dissolution of the marriage, supporting this with the required evidence. As well as statement of claim about the place of residence of the child must be submitted and. Each parent must prove to the judge what exactly he can give the child best conditions development - physical, material and mental.

Note! The child separation lawsuit is taking place in accordance with the law "On the Protection of the Rights of the Child" and Art. 78 RF IC.

In order to resolve the dispute about who the child will live with, the judge comprehensively considers the circumstances of the case, takes into account many factors and points.

  1. The opinion of a minor child;
  2. Parents' desire;
  3. The moral character of father and mother;
  4. Financial capabilities of parents;
  5. Social environment;
  6. District and region of residence;
  7. Other circumstances.

The role of guardianship authorities in the divorce proceedings

During the court hearing on the division of children in case of divorce, the presence of the guardianship and guardianship authorities is mandatory. The representative of this instance examines the place of residence of children and their parents, on the basis of this, an inspection report is drawn up and submitted to the judicial authority. Such a document is one of the main ones in the process of determining the place of residence of a child.

If the judgment is not satisfied

In some cases, one parent remains unsatisfied with a court decision after divorce. Of course, he has the right to appeal against the accepted division. In order to convince the judge and achieve living with the child, the parent needs to prove with irrefutable facts about the impossibility of the second parent to provide a decent life to kid. This may be facilitated by the above conclusion, which is drawn up by the guardianship and guardianship authority. Evidence on specific facts from family life.

In conclusion, it is worth noting: if you want to divide the baby after the termination of the marriage, parents should also remember about the interests of the child. Because for the full development of children, they really need comfortable conditions when living with a parent.

ATTENTION! In connection with latest changes in the legislation, the information in the article could be out of date! Our lawyer will advise you free of charge - write in the form below.