How to determine the policies and upbringing of the child after divorce?
If the spouses have common minor children, divorce is in the courts. The exception is if one of the spouses (paragraph 2 of article 19. article 21 of the RF IC):
– recognized by the court as missing;
– recognized by court as legally incapable;
– convicted of the offence to imprisonment for a term exceeding three years.
In the absence of agreement between the spouses, the decision about who after the divorce the child will live, must take the court.
The courts, as a rule, does not itself initiate the decision of the question of who will raise the child after divorce. The non-custodial parent’s right and obligation to participate fully in the upbringing of the child and the parent with whom the child lives has no right to interfere with it (if such communication with parents does not harm the physical and mental health of the child’s moral development) (clause 1, article 66 of the family code). The courts should not wish to change this order. However, spouses are entitled to take its own steps to change the General upbringing of children after divorce.
To resolve questions about who the child will live after the divorce and who will nurture it, we recommend adhering to the following algorithm.
Step 1. Make agreements about the children (if possible).
The legislation provides that before the dissolution of the marriage, the spouses are entitled (but not obliged) to enter into agreements:
– about the place of residence of the child;
– about the exercise of parental rights, which will stipulate the education of the child.
Help. Features of agreements on children
The presence (or absence) of these agreements may not prevent the issue of divorce. Moreover, if the spouses have not reached agreement on the exercise of parental rights, and between them there is a dispute about the child’s upbringing after the divorce, the dispute on the application of the spouses, the court may allow, together with questions about divorce and determining the place of residence of the child.
Jurisdiction of Affairs in case of the absence or existence of a dispute about children
From reaching an agreement on the place of residence of the child may depend on the question which the court will make a decision as divorce and the child’s place of residence.
If there is no dispute between the spouses of children, petition for dissolution of marriage to be considered in the magistrates ‘ court (PP. 4 clause 1, article 23 of the civil procedural code). If between spouses there is a dispute about children, including the location of the place of residence, then such case shall be referred to district court (PP. 4 clause 1, article 23. article 24 of civil procedure code). The plaintiff may unite in the same complaint several requirements that are interconnected (on divorce and on determining the place of residence of the child), however, if at least one triable magistrate, the case must be considered in the district court (paragraph 3 of article 23 of the civil procedural code).
Note. If you do not have sufficient legal knowledge to a written agreement, may apply to the organization, specializing in the drafting of these documents. Such services usually are paid. Their approximate cost is 2000 rubles. and more.
It is possible that the experts will ask you to specify in a single agreement (concluded in writing) both questions (the place of residence of the child and about his upbringing). It is not prohibited.
Step 2. Imagine the court an agreement concerning the place of residence of the child (subject to his achievements).
Agreement on residence of the child you can present to the court together with the petition for dissolution of marriage or at any other stage of the proceedings for dissolution of marriage (clause 1, article 24 of the RF IC). The court is obliged to consider the agreement and to establish, whether it is not contrary to the interests of the child or one of the spouses.
The agreement may be submitted in writing or reported to the court orally.
Step 3. Take part in the hearing for dissolution of marriage.
When considering the case of divorce, the court will take into account the opinions of the parties that they have agreed who will be living minor children after divorce, and will incorporate case agreement (if any).
If the spouses have not reached agreement about the place of residence of the child, when considering the case of divorce, the court must determine which parent will be living minor children after divorce. The legislation requires the court to make such a decision regardless of stated if any of the spouses relevant requirement (article 24. section 3 of article 65 of the RF IC).
In the absence of agreement, the dispute between the parents is settled by the court based on the interests of children and taking into account the views of children. The consideration of the opinion of a child above 10 years, mandatory, except when this is against their interests (section 3 of article 65. article 57 of the RF IC).
Step 4. Get the judgement.
In the court’s decision will be the agreed place of residence of the child, as well as the participation of parents in the upbringing of the child (if the spouses stated requirements of the decision by the court of these issues).
Note. If the court decided only on divorce, and the dispute about the child hesitated, then one of the former spouses may file a new petition on determining the place of residence of the child. This can be done at any time after the dissolution of marriage.
Step 5. Take part in the upbringing of the child after divorce.
Regardless of how the child’s place of residence determined by the court, after the divorce, both parents have the right to participate in the upbringing of the child:
– in a General manner;
– by agreement of the parties on the exercise of the parental rights of the parent living separately from the child (if such an agreement were concluded);
– fine, assessed by the court (paragraph 8 of the Resolution of Plenum of the Supreme Court of the Russian Federation dated 27.05.1998 N 10).
If for any reason the right to participate in the upbringing of the child one of the parents would be violated, he may file a lawsuit the restoration of violated rights.