Disputes over the place of residence of children after the separation of parents is no longer a rare occurrence. Conflicting relationships between ex-spouses form the basis of mutual claims in deciding who the child will remain with after the divorce. Despite the fact that usually children remain with their mothers, recently more and more fathers have claimed their children.
Divorce when a minor is in the family. How to be
If the family has minor children, even with the mutual consent of the spouses, divorce is possible only in court. A divorce occurring on a sole application through the registry office is possible only in three cases:
- when the second spouse is declared legally incompetent through court;
- considered missing;
- sentenced to imprisonment for a term of more than three years.
In any case, the question of the upbringing and maintenance of children is considered separately in court, and this happens even with a divorced marriage.
No agreement? We decide through the court
Who will the child stay with after the divorce? According to the Family Code, both mother and father have the right to education. The court does not limit the ability of parents and children to communicate.
The decision on who the children remain after the divorce must be expressed in writing by the parents. It is provided to the court and should protect the interests of children, but also take into account their opinion. If there is no such agreement, or if it violates the rights of the child, the court decides on the basis of the arguments provided.
When a child reaches the age of ten at the time of the trial, the procedure is somewhat different. When deciding who the child will remain after the divorce, his opinion should be taken into account. If the decision does not coincide with his own interests, and he cannot explain why he chose one of the parents, the court may not take into account his opinion. At the same time, the highest authority will proceed from the conclusion of the guardianship authorities and the opinion of the expert psychologist, if any.
Communication in court: which arguments are decisive
The decision about who the child will remain with after the divorce of the parents is not easy. It should be based on a comprehensive comparison of different aspects of family life. Namely, the following should be considered:
- the age of the child;
- his personal attitude to each member of the family;
- feelings of parents to the child;
- moral and personal qualities of family members;
- the presence of conditions favorable for the upbringing and development of the child.
It is worth noting that the stable financial situation of one of the parents does not play a major role and is not a determining factor that the child will remain with him. All criteria will be considered in the aggregate, and only then will the overall picture be compiled. There are no special rules by which to establish with whom the child will remain after the divorce.
Legal advice
Parents need to try to keep friendly. A complete gap will negatively affect subsequent communication with the child.
Try to solve everything peacefully: discuss all issues and misunderstandings. A lawsuit is a heavy stress for both adults and children. And even if you resorted to it, try not to injure the psyche of the child and not injure his general condition.
If you want the child to stay with you, you should create favorable conditions for his living and development. And also bring in court a compelling justification of why it is better for your child to be with you than with the other parent.
In the process of divorce, division of property and determining the place of residence of children First of all, you should think about the well-being of the latter. Do not forget that the court takes into account many factors: financial situation, availability and number of square meters suitable for housing, emotional relations with a child, his affection for one of his parents, adult behavior during married life and after divorce.
Can a court decision be reviewed after a lapse of time?
Imagine the situation. A lawsuit has been filed for divorce. With whom the child will remain, it was agreed in advance. But after some time, one of the parents wants to pick up the child for himself. How to be in this case? Answer: the case must be considered in court.
And if once a decision was made that determined the place of residence of the child? In this situation, the disagreeing party may apply to the higher authorities with an official statement and demand that the child be transferred to her. But for this the plaintiff must have good reasons.
So in what cases is a review of a court decision possible? For example, as a child grows up, a different approach is required to him, a different manner of education. This is usually associated with the onset of puberty. And the mother with whom he stayed at one time does not cope with him. In this situation, the father can write a statement to the court demanding that the child be transferred to him.
The basis for the review of the earlier decision may also be a change in the living conditions of the parents. For example, a raising parent suddenly became disabled, and further care for the child becomes an unbearable burden for him. Then the court can approve the lawsuit of the other parent.
In addition, the misconduct of the mother or father, as well as the deteriorating relationship between the parent and the child, can become a good reason.
In a word, a court decision can be reviewed in any circumstances that seriously interfere with the normal upbringing of the child.
Guarantees of the rights of children in case of divorce of parents
The basic rights of children include the right to reside, to communicate with relatives and to upkeep. They are guaranteed by the RF IC. And although they are fixed by law, it is not so simple to control their implementation.
We focus on the material side of keeping children. It is expressed by the payment of alimony, the amount of which is set as a percentage of the income of the payer.
In addition, when dividing property, a divorce does not take into account the values that are attributed to the child by the right of ownership. Also, things that do not belong to children, but purchased exclusively for them, should not be shared. That is, property that is in joint use will pass to the one with whom the child will remain after the divorce of the parents.
The same applies to cash deposits in the name of the child. According to the law, they belong to him and are not divided upon divorce.
Prohibition of communication with the child: is he legitimate?
None of the parents lose their right to see the child during a divorce. Failure to communicate is against the law and may be harmful. In addition to the deprivation of parental rights, the only condition when the prohibition of meetings is provided for by law is the possibility of harming the mental and physical health of the child.
That is, the refusal must be substantiated and confirmed by facts. Neither mother nor father can make such a decision on their own and prevent the participation of the other parent's child in the life of the child.
In addition, both parents are entitled to receive data from medical and educational institutions.
In conclusion: rules of conduct for parents
If there is a common child, during a divorce, not two sides suffer, but three. Most difficult to bear what is happening children. When parents divorce whom they remain with, unless mutual agreement is reached, the court will decide. It bears a heavy burden. He needs to decide the fate of a child who loves both parents equally. For him, both mother and father are dear in their own way, and no one will replace them with him.
Often, when deciding who the child will remain with after a divorce, the court has to teach parents how to behave. Most often they focus on the fact that a separately living parent does not lose his rights after a divorce. He must also participate in the life of the child.
Sometimes ex-spouses even have to indicate how to behave with each other, at least in the presence of a child. It is important not to set up a son or daughter against another parent. You can not denigrate it in the eyes of a child. Although not from a legal point of view, but from the human side, this is not worth doing.
