Children division rules -

Children division rules

The Supreme Court determined the main thing in disputes about where the child will live after the divorce.

Children division rules

Important clarifications were made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation when it reviewed the outcome of a dispute between parents about which of them the child will live with.
Judging by today's judicial statistics, such claims - about determining the place of residence of minor children - are among the most numerous. But the matter is not even in quantity, these disputes are morally complex and affect only the plaintiff and defendant. And the number of such litigations continues to grow. It is no secret that often such disputes about determining the child’s place of residence do not focus on the interests of the child, but on the way of settling adult accounts.
But even if, when going to court, parents worry solely about the interests of the child, what should be the main thing for such disputes? The Supreme Court answered this question, studying the complaint against the decision of the local courts.

So, the parents went to court to determine with whom the child should live.

Both father and mother provided the court with good characteristics. But the two local courts that examined this case took diametrically opposed decisions. So, the district court decided that the baby is better with his mother. Even despite the fact that her living conditions were worse than that of her father, there was a problem with money.

Disagreeing with this decision, the father protested the verdict. The appeal with the findings of the district court did not agree, they were canceled and a new decision was made - now in favor of the father.

And now about this matter in more detail. Our story began with the fact that the mother went to court, who asked to determine with whom the child will live, if the woman broke up with her husband, but did not divorce. The father, in turn, believed that the son should stay with him. Both parents were positive, and at the time of the trial there was a bad situation when the child literally changed hands: first he lived with his mother, then with his father, and then the mother asked the court to give her son to her.

In the first instance, the court, after hearing the parties, left the child with the mother, reducing the time for father and child visits to four hours on weekends and holidays. The first instance motivated this decision by the fact that the child is only one year old and you can’t separate him from his mother.

The appeal took the opposite decision. They said that the living conditions of his father are better. The father is a businessman, lives in a large house, where the child has his own, separate room and everything necessary. And also, the second instance said, the father is engaged in raising his son.

About the mother, the appeal stated the following. The woman does not work, lives on alimony, which she receives for the older child, plus allowance, plus help from relatives. The mother of the child lives in an old house with stove heating, and the toilet is on the street. From all of the above, the appeal concluded that the mother does not have the possibility of the normal upbringing of the child. And he had already become attached to his father.

A desperate mother went to appeal such a verdict. She appealed to the Supreme Court. There they studied the complaint and disagreed with colleagues in the appeal.

Here are the results of the dispute parsing by a high court.
The Supreme Court, in its ruling, said that the mere advantage in the material situation of one of the parents was not an unconditional basis for satisfying the requirements of that parent.

When considering such disputes, the Supreme Court said, one must proceed from the interests of the child in the aggregate of circumstances characterizing the situation that has developed in the place of residence of each of the parents. However, in order to find out what this situation is, evidence will be required. The findings of the court “should not be general and abstract,” is emphasized in the determination of the Judicial Collegium for Civil Cases of the Supreme Court. The court must invoke regulations and evidence. They were not enough, the Supreme Court of the Russian Federation noted.

What to do is said in article 78 of the Family Code. The article emphasizes: if the courts consider disputes related to the upbringing of children, guardianship authorities must be involved in the case - regardless of who brought the claim in defense of the child. Guardianship should conduct an examination of the living conditions of the child and those who want to raise him. The inspection report and the conclusion based on it on the merits of the dispute are submitted to the court. "The opinion of the guardianship authority must be signed by an authorized official of the guardianship authority or local government," - recalls the Supreme Court. However, there was no such conclusion in the case.

In addition, the Supreme Court emphasized: the courts did not order the examination requested by the father of the child. Failure to designate an examination by a local court is a material violation of procedural law.

Source: Russian newspaper

25.12.2019 06:09:57
(Automatic translation)

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