Joint custody - which parent is the custodian?

Home/Guardianship

The divorce of parents leads many children to early psychological trauma, which can result in complications in the formation of the child’s personality in the future. The offspring physically needs the support of their father and mother. Conscientious parents can reduce the risk of harm to the psyche of a minor child if they continue to take part in the child’s life by obtaining guardianship in the event of a divorce. However, in practice, the desire of the father and mother is often broken by the pitfalls of legislation. To prevent this, it is necessary to study the subtleties and nuances of the procedure for securing the rights and obligations of parents in relation to a child upon divorce.

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What does child custody mean in a divorce?

When filing a divorce, the question arises as to which of the former spouses will be responsible for the child. Child custody involves (Chapter 20) the RF IC:

care for minors;
parenting;
making decisions on matters related to the interests of the baby.

Also, the parent responsible for the child has the right to receive any information about the child from officials.

For your information

It is important to consider that the term “custody” when parents divorce, implies the designation of the rights of the mother and father to participate in the lives of the children. This clarification is due to the position of the legislation. So, taking into account clause 3 of Art. 31 of the Civil Code of the Russian Federation, guardianship is appointed exclusively in the event of deprivation of parental rights or other circumstances that prevent the fulfillment of duties by the father and mother.

Features of joint custody

Resolving financial disagreements between spouses is usually less painful than determining child custody rights. This question is relevant all over the world. Few states choose to grant a parent sole custody. Shared custody is practiced around the world. It is clear that it is best if the child grows and is raised by both parents. This has a positive effect, first of all, on the child’s psyche and well-being. However, how beneficial is this state of affairs, what are its pros and cons?

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The benefits of shared parenting in raising children

Children grow and are raised with the participation of each parent. Both mother and father have legal rights regarding the child's fate. They both have legal rights to live together.
A child can serve as fertile ground for two divorced parents. Divorced couples must communicate, which will lead, if not to reconciliation, then at least to the establishment of friendly relations. Very often, joint custody results in family reunification.
Both parents have less stress and responsibility with shared custody. This is especially true for women who often experience difficulties with finances and housing.

Disadvantages of Shared Custody

Having to communicate with ex-spouses can be frustrating.
For children, constantly moving from house to house can be stressful. This can be especially difficult for preschoolers who prefer stability.
Joint custody can lead to much greater conflict and quarrels between ex-spouses when making important decisions.
Sometimes a child's needs may go unnoticed. Joint custody means shared responsibility. However, for some spouses this is a reason to shirk responsibilities.

But despite the benefits, many divorce lawyers note that shared custody is not a suitable option for all couples. In theory, the presence and participation of both parents is very beneficial for the child. But if ex-spouses cannot communicate in a cooperative and friendly manner, joint custody can only be harmful. It will only be beneficial if both parents are willing to put aside their differences and meet each other halfway.

Normative base

In order to avoid difficulties that arise when establishing child custody when parents divorce, it is important to study the provisions of a number of legal documents:

Federal Law No. -FZ of 2008. A key regulatory act that defines the features of guardianship and trusteeship.
Art. - Civil Code of the Russian Federation. The basic procedure for appointing a guardian is established.
Chapter 20 of the RF IC. The nuances of establishing a responsible person over children are prescribed.

Additionally, it is necessary to take into account the positions of other regulations that clarify the subtleties of the procedure for appointing a guardian for a child upon divorce of spouses. For example, Government Decree No. 117 of 2013, which sets out a list of diseases due to which a citizen will not be able to become responsible for the baby.

Who will be the child's guardian after a divorce?

Upon divorce, parents must decide who will be responsible for the child. By decision of the former spouses or the court, the following may become a guardian:

father;
mother;
both parents (joint).

In case of divorce and distribution of children, each of the former spouses may receive custody rights for a specific child. However, the parent may not always be allowed to see the baby. In Art. 35 of the Civil Code of the Russian Federation and Art. 146 of the RF IC establishes that a guardian must be recognized as a legally competent citizen over 18 years of age, whose biography does not contain a number of the following circumstances:

deprivation of parental rights;
having a criminal record that was acquired as a result of the intentional commission of a crime, the purpose of which is to cause harm to the life or health of a person;
recognition of patients suffering from alcoholism or drug addiction;
removal from the duties of a guardian;
restriction of parental rights by court decision;
deprivation of the status of “adoptive parent” through one’s own fault.

Also, a parent will not be able to become a guardian if they have diseases, the list of which is determined by Decree of the Government of the Russian Federation No. 117 of 2013:

tuberculosis in persons from groups 1 and 2 of dispensary observation;
substance abuse in addition to drug addiction and alcoholism, which were noted earlier;
malignant tumors of stages 3 and 4 (neoplastic tumors of stages 1 and 2 before treatment);
illnesses and injuries that caused the assignment of 1st group of disability;
mental disorders;
infectious diseases until completion of dispensary observation.

When appointing a guardian, the characteristics specified in paragraph 2 of Art. 146 RF IC:

moral and personal qualities of a person who wants to be responsible for a child;
the ability of the guardian to fulfill his duties, that is, to positively influence the development of the baby;
relationship between parent and child.

IMPORTANT
In addition, when establishing custody in a divorce, it is also necessary to take into account the opinion of the child himself, who has reached the age of 10 (Article 57 of the RF IC).

What documents are needed for joint custody of a child after divorce?

Divorce is an unpleasant procedure that negatively affects the moral state of the spouses, but also their child or children. According to statistics, in the last decade the number of divorces in the Russian Federation has almost doubled compared to the previous century.

As a result, it is advisable to amend the Family Code of the Russian Federation to resolve the issue between former spouses as peacefully as possible. One important aspect of the divorce process is children: who do they stay with during the divorce?

Which parent is the guardian of the adopted child after a divorce?

It is important to understand that after the baby is accepted into the family, the offspring is considered a family member according to legal consequences (Clause 1 of Article 137 of the RF IC). That is, when determining a guardian after the divorce of a married couple, the same principles are used as specified above. If we take into account the conclusions from practice in such cases, in most cases the mother with whom the child physically lives is appointed responsible for the child. At the same time, guardianship on the part of the father is expressed in taking part in the upbringing and development of the adopted offspring.

Which parent is the guardian of the adopted child after divorce?

In practice, such a procedure provides for full joint guardianship, or the appointment of a specific guardian and the subsequent full participation in the life of the child of the second participant in the process. As a rule, guardianship is assigned to the parent with whom the minor remains after the dissolution of the marriage. If a physical option is provided, then both trustees will act as guardians, but most often a legal form is provided, with children often remaining with their mothers, and fathers in turn doing everything necessary for the proper upbringing and development of their offspring.

Ways to obtain child custody after divorce

In most cases, upon divorce, the identification of the person responsible for the child is carried out voluntarily. The basis for assigning such status to a parent in this case is an act of the guardianship and trusteeship authorities, which is stated in paragraph 6 of Art. 11 Federal Law No. 48 of 2008.

The need to go to court to establish guardianship of the offspring after divorce arises if interested parties (mother, father or other family member) are against the decision of the authorized bodies.

Determining the primary guardian for an offspring during a divorce

Who the child will remain with after the divorce depends on the preparedness of the former spouses to defend their rights in relation to the minor citizen. The determination of the primary guardian for the baby is based on a number of the following documents:

certificate of absence of addiction to alcohol and drugs;
application for establishment of guardianship;
an extract from the house register - confirmation of the availability of living space for living;
document from the place of work - to establish the income of the guardian;
a police certificate - to prove the absence of criminal records for crimes related to intentional harm to the health and life of a person.

After collecting the documents, you need to proceed as follows to establish custody in a divorce:

Contact the guardianship and trusteeship authorities to obtain a conclusion confirming the candidate’s compliance with the requirements of regulations governing the appointment of a person responsible for the child.
Send documents to the district court (Article 24 of the Code of Civil Procedure of the Russian Federation), attaching a claim.
Take part in the proceedings and defend your own position stated in the claim.

All that remains is to wait for the expiration of the appeal period and the entry into force of the court decision.

An application from a citizen wishing to become a child’s guardian can be

Joint custody of a child upon divorce

Upon divorce, parents can independently determine the rights and responsibilities they have in relation to their own child. In this way, it is possible to avoid negative consequences for the psycho-emotional state of the child, the occurrence of which is caused by the divorce of mother and father. It is important to consider that the law does not contain the term “shared custody.” This definition should be understood as designating the rights of the mother and father to participate in the lives of their children.

For your information

Joint custody of a child can be physical, which implies the actual stay of the child with each of the trustees in equal proportions in time, as well as legal - this option involves the permanent residence of the offspring with one of the parents and temporary residence with the other. At the same time, for example, a father who lives separately also takes an active part in raising his minor offspring and resolving issues affecting the interests of the child.

Types and features of joint custody of a child after divorce

Joint custody can be arranged in different ways. Everything will depend on the age of the child and the specific features of the situation.

There are two types of joint custody:

Legal. The child lives with one of the parents. The second spouse visits him according to schedule and takes an active part in his maintenance and upbringing.
Physical. The child lives with his father and mother alternately: a week after a week, a month after a month, etc. The schedule is drawn up on an individual basis. Both mother and father give the child a separate room in their apartments.

With joint custody, the parent alone cannot decide issues that are life-changing for the child (for example, transferring to another school). Such decisions are made only together with the second spouse.

Joint custody can be used exclusively for raising children after 10 years of age. It is believed that up to the age of 10, every child urgently needs the constant presence of his mother.

How to obtain joint custody of a child during a divorce?

Resolution of disputes between spouses upon divorce occurs in two ways: voluntarily or in court. Parents can independently agree on joint custody of the child by drawing up an agreement (clause 1 of Article 24 of the RF IC) and determining the procedure for communicating with the offspring after a divorce.

If the spouses cannot reach a compromise on the nuances of the distribution of rights and responsibilities in relation to the baby, the ex-husband and wife will have to go to court. Regardless of the method of establishing joint custody, the opinion of the child is necessarily taken into account if his age exceeds 10 years (Article 57 of the RF IC). In addition, the court considers other circumstances related to the financial situation of each spouse and the relationship between mother and father with the baby.

Is it possible in Russia to obtain joint custody of a child after a divorce?

The legislation of the Russian Federation does not contain the term “joint custody”. Parents are given equal rights in relation to minors. They are their representatives, not their guardians. In the event of a divorce, the court decides who the child will live with if the parents were unable to agree on this themselves.

The IC does not provide for the advantage of one spouse over the other and the possibility of joint custody of the child after the parents divorce. In the Russian Federation, the issue of finding children can be resolved in 2 ways:

if both were able to resolve the issue on their own, sign the agreement and have it certified by a notary or agree verbally;
If there is no agreement, the decision will be made by the court.

During a divorce, it is the court that decides with whom the child will remain, having previously examined the circumstances of the case. When making a decision, the interests of the minor himself are taken into account.

The following circumstances are being studied:

Opinion of a minor over 10 years old. They ask him who he wants to stay with, who he is more attached to, how his relationship with his parents is. Relationships with brothers and other relatives living together are taken into account. Children under this age are not called to the meeting. It is believed that they should not be separated from their mother unless there are extenuating circumstances.
Spouses' opinion. The judge finds out whether they want and are ready to take on the maintenance and upbringing of the child.
Lifestyle, moral qualities of spouses, physical and mental health. A spouse who abuses drugs, alcohol, or leads an immoral lifestyle will not be trusted to raise a child.
The ability to provide financially for a child and create normal living conditions for him.

European realities

The practice of joint custody exists in Europe. It allows both parents to participate equally in raising children and communicate with them. There are two types:

Legal. The minor permanently resides with one parent. The second has a real opportunity to actively participate in his life. All decisions concerning the child are made by the former spouses together. A minor can come to visit the other parent for several days. Issues of education, religion, and moral education are resolved jointly.
Physical. The order of residence of the child with each parent is established. He spends the same amount of time with them.

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This form is possible if the parents live close to each other, the child will be able to continue going to kindergarten or school.

Russian practice

Joint custody is rarely found in Russian practice, although it allows both spouses to equally exercise the right to communicate with the child and raise him. The term “guardianship” does not imply the establishment of guardianship in this case. It is used to indicate the right of both parents to participate in the lives of their children.

The legislation does not provide for this possibility, since guardianship is appointed only in cases of deprivation of parental rights or other circumstances that prevent the fulfillment of parental responsibilities.

It is possible to maintain the opportunity to communicate with the child only with the consent of the mother, otherwise she will interfere with this. If you manage to come to an agreement with her, then you need to draw up an agreement that provides for the rules of communication with the child, allowing him to temporarily reside with his father.

Legislation

Article No. 65 of the Family Code states that parents have the right to decide all issues affecting children’s interests themselves, taking into account the opinions of minors. Art. No. 66 guarantees the parent the right to communicate with the child if this does not harm his physical or mental state. Only the court can deprive this opportunity.

After a divorce, parents can independently agree on how much time the child will spend with the separated parent, and establish the regularity and duration of meetings. If an agreement cannot be reached or the agreement is violated, it is necessary to go to court.

For failure to comply with its decision, the defendant may be fined.

Many children suffer psychological trauma, deprived of communication with one of their parents while they sort things out. The child needs the attention and support of both. Sometimes women neglect the interests of children and blackmail fathers who are trying to get a meeting with the child.

Guardianship authorities upon divorce

The participation of guardianship and trusteeship authorities in the procedure for divorce of spouses is mandatory when identifying the person responsible for the child. A parent who wishes to become a guardian must contact the employees of the authorized service with a request to issue a conclusion on the possibility of obtaining the appropriate status, attaching a number of documents (RF Government Decree No. 423 of 2009):

a certificate from the place of employment, the contents of which must include the following information: position, salary for the last year;
an extract from the house register as evidence of the right to use the residential premises;
a certificate from law enforcement agencies to confirm the absence of criminal records for crimes related to the intentional infliction of harm to human health and life;
a medical report on the health status of the potential guardian, proving that the applicant has no contraindications for obtaining rights in relation to his child after divorce;
divorce certificate;
consent in writing from family members of the person wishing to become a guardian;
autobiography.

IMPORTANT
Under certain circumstances, when establishing child custody in a divorce, additional documents may be required. For example, if the parent’s main source of income is cash receipts from the Pension Fund, you will need to provide a pension certificate or a certificate from the fund.

After receiving the full package of documents, guardianship service employees act as follows (Resolution of the Government of the Russian Federation No. 423 of 2009):

Study information from papers.
If necessary, additional information about the applicant is requested from authorized structures (from the place of work, from the Pension Fund, the Federal Tax Service, law enforcement agencies, etc.).
The future living conditions of the child are assessed during a personal visit to the apartment where the baby will live.
Based on the results of the inspection of the premises, an inspection report is drawn up.

In conclusion, taking into account all the information received, guardianship officials make a decision to appoint the applicant as the child’s guardian or to refuse to assign the appropriate status. In the future, the authorized service conducts scheduled inspections of the family in which the child remains to identify facts of violation of the interests of a minor citizen.

What does the guardianship service check in an apartment during a divorce?

One of the duties of the guardianship authorities, when appointing a person responsible for the baby upon divorce, is to inspect the premises in which the child will live (clause 2 of article 24 of Federal Law No. 48-FZ of 2008). The apartment where a minor citizen with a guardian will stay must meet a number of requirements:

Conditional order is maintained in the home. That is, there should be no garbage, unwashed dishes or a room that is chronically not cleaned.
A separate sleeping place is provided for the child.
The refrigerator contains food products in accordance with the physiological needs of the baby.
A minor citizen is provided with seasonal clothing taking into account age and size.
The student is allocated a separate place for studying (for example, the kitchen table cannot be considered suitable for preparing homework).
The house remains safe. That is, the presence of potentially dangerous items in the public domain is checked, be it knives, chemicals, or medicines.

Based on the results of the inspection, an act is drawn up in accordance with Order of the Ministry of Education and Science of the Russian Federation No. 334 of 2009, which indicates the following information:

Title of the document;
Date of preparation;
information about the parents of the minor offspring and about the child himself, specifying the details of the birth certificate or child’s passport;
participation of mother and father in the life of the baby;
information about the child’s condition: health, adaptation in society, academic success, appearance, upbringing;
family environment and social connections;
living conditions with a detailed description of each item from the list above;
family income data;
information about the child’s property;
conditions that pose a danger to a minor child;
conclusions and signatures of specialists.

After registering guardianship of a child, employees of the authorized body conduct scheduled inspections of the family’s place of residence (RF Government Decree No. 423 of 2009):

within a month from the date of appointment of the person responsible for the baby - 1 time;
within a year from the date of registration of guardianship - every quarter;
after 12 months from the appointment of the responsible person - once every six months.

Attention
Employees of the guardianship and trusteeship authorities have the right to visit the apartment of the ward at any time if they identify a fact of non-compliance with the interests of a minor citizen. As a rule, a signal about the need to check living conditions comes from the child’s neighbors or teachers.

Joint custody of a child in divorce

What is joint (shared) custody of a child? This is a legal provision that allows guardians to jointly establish a guardianship and make decisions regarding their children. If they have found a general consensus on the legal and physical aspects of parental responsibilities, the process of signing a document establishing joint custody is a formality.

But in some cases, one of the parents must make a lot of effort to obtain such status. Guardians are persons who have an impeccable reputation. They must provide children with a decent standard of living and upbringing.

Both parents, according to joint custody, have the opportunity to participate in the life of the baby. Their shares of rights and responsibilities are the same. It can be both legal and physical.

The legal form implies equal rights for both mother and father in resolving basic issues of education, medical education, moral and religious education. This arises when children live with one of the parents, but all issues must be resolved taking into account the opinion of the other.

Joint physical custody involves determining the child's place of residence with one or the other parent, and spending quite a lot of time with both of them. By taking care of the children one at a time, guardianship will be an ideal option for resolving issues that arise during a divorce. To do this, each of the former spouses allocates a room in their house or apartment for their residence. But both parties assume responsibilities for maintenance, regardless of whether it is feeding or purchasing clothes. They must provide full development and assistance in preparing lessons. This form of joint custody can be established when the daughter or son reaches the age of six. As a rule, before this, the babies live on the mother’s territory.

The influence of joint custody on the child’s psyche

Having decided to divorce, the spouses must understand that it will have an impact on the future lives of the children, as well as affect their mental state. But it is unknown whether this will be his best side or his worst. It all depends on the parents. Mental disorders or the development of psychosomatic diseases, starting from infancy, arise as a result of open conflicts or the state of the Cold War. If the spouses decide to divorce, they should be guided by common sense. Wishing their son or daughter happiness, they must find a common language with each other, because children need both mom and dad to the same extent.

In order for the baby’s psyche to develop normally, parents need to be guided by a number of rules:

You cannot pass on your negativity and hatred of your ex-spouse to your children. The ex-husband's or wife's attitude towards the new family should be calm. You can’t talk badly about it in front of children;
not only kids, but also teenagers need increased attention to themselves, understanding, as well as caring attitude from both the mother and the father. A child’s psyche develops well and becomes more stable when his guardians, who have established joint guardianship, together show spiritual and physical closeness to them.

Children who experience divorce almost always change. Their maturation begins a little earlier, some grow up understanding, while others experience the opposite, intractability and capriciousness. At this time, you need to take care not only of his material well-being, you need to establish a closer relationship, establish tactile contact. It is better to eliminate restrictions on communication with the other parent.

According to research by psychologists, joint custody has a beneficial effect on children, as well as on their future. It is widely practiced in many European countries, but at the same time this opportunity is rarely used by Russian parents.

Having established an agreement on alternate care of children, guardianship obliges them to strictly adhere to established rules and regulations. Otherwise, they will feel unhappy, deprived of the love and attention of one of their parents.

About alimony

A mother or father who lives separately from the children is required to pay child support, even when they actually spend a lot of time together. But at the same time, spouses have the right to reach an agreement without the help of a court, resorting to the most acceptable procedure for communication. This agreement can be either oral or in writing. In this case, child support may not be collected.

Documents for registration of joint custody of a child

In order to successfully consolidate the rights and obligations in relation to the child upon divorce, parents who decide to act jointly need to prepare a number of papers prescribed in Decree of the Government of the Russian Federation No. 423 of 2009:

autobiography separately for each of the guardians in a brief summary;
a certificate from the employer specifying the position held and the average salary for the last 12 months;
certificate of divorce;
a medical report confirming that potential guardians do not have diseases, the list of which is defined in Government Decree No. 117 of 2013;
marriage certificate - if any of the persons who wish to become a trustee are in an official relationship;
written consent given by each minor member of the new family to the absence of claims against the wishes of the parent/adoptive parent;
a certificate from a law enforcement agency as confirmation that potential guardians have no criminal record for crimes that were committed intentionally with the aim of causing harm to the life or health of a person;
pension certificate as proof that applicants receive payments from the Pension Fund.

Additional information
The above list of documents is necessary to obtain joint custody of a child after a voluntary divorce. If the appointment of persons responsible for the life of the offspring occurs through the court, it will additionally be necessary to submit other papers, the list of which is determined taking into account the disputed moment. As an example: an ex-wife is trying to limit her husband’s rights in relation to the baby, citing the financial insolvency of her husband. The father’s rights to the child should not be infringed without good reason, so in this case the man can provide bank statements confirming the availability of funds in the account.

How to get joint custody of a child

If neither spouse is an asocial element, the legislation of the Russian Federation seeks to preserve the equal rights of spouses regarding the issues of raising their children after a divorce. The main thing is that parents can agree with each other.

Guardianship is formalized as follows:

If the parents have established a constructive dialogue, they sign an agreement, which is certified by a notary.
The parents have verbal agreements and trust each other. In this case, a written agreement is not required.
If there is a disagreement, the court makes a decision.

If there is no agreement between the parents and the case is being considered in court, the agreement on joint custody is approved by the relevant judicial act. Subsequently, it can be changed based on mutual agreement of the parties. This happens if one of the parents, for example, moves to another city.

What controversial issues are resolved in court?:

the parent unreasonably refuses to transfer the child for temporary residence to the second parent;
a parent prevents the other parent from communicating with the child;
under the terms of the agreement, little funds are allocated for raising a child;
The child’s living conditions at his place of permanent residence have deteriorated sharply.

The agreement between the parents states the following:

Who will the child live with permanently? If the child is expected to live with both parents, an appropriate schedule is prescribed.
Certain restrictions on communication. The other parent can commit to not visiting the child unexpectedly or at late times (for example, after 11 p.m.).
A way to resolve issues that affect the fate of a child. For example, you can stipulate that all issues related to studies are decided by the mother, and issues related to the purchase of clothes, gadgets and computer equipment are decided by the father.

When concluding a joint custody agreement, the interests of the child are taken into account. He must be provided with comfortable housing. It is important to exclude a significant difference in the level of security in the two apartments. If the father has an expensive and powerful computer in his apartment, and the mother has an old and weak one, then at some points in life the child, for obvious reasons, will gravitate towards the father’s home.

Both parents can come to school meetings and communicate with relatives on both lines. There should be no prohibitions in this regard in the agreement.

What documents are needed to register joint custody:

parents' passports;
children's birth certificates;
extracts from real estate documents;
medical certificates confirming the absence of diseases that prevent you from taking part in raising children;
certificates of no criminal record;
certificates from places of employment confirming a stable income;
an application to the court stating the desire to resolve the issue of joint custody of the child.

What the court takes into account:

Child's opinion.
The behavior of each parent (characteristics, reviews and testimony are studied).
Financial well-being of both parents.
If there are several children, their relationships with each other are studied. As a rule, the court tends to keep sisters and brothers together.
The child's relationship with each parent.
The presence of other marriages and children from other marriages of the parents.
Distance of schools and medical institutions from the places of residence of each parent.

Registration procedure

The desire of the parents to take part in the life of the child after the divorce, in order to avoid possible complications, should be enshrined in a separate agreement. To obtain joint custody of a child in a short time, you should follow specific step-by-step instructions:

First of all, it is important to determine the rights and responsibilities of each parent in relation to the child: with whom the minor will live, how the child will be financially supported, when and under what conditions meetings will be held. In case of any disagreement, you will have to go to court.
Once you have reached a compromise on all the required provisions for joint custody of a child in a divorce, you should put the terms in writing. The law does not establish a form for such agreements, however, to avoid violations of the provisions of regulatory legal acts, it is worth using the standard template given below.
After this, it is recommended to contact a notary. The legislation does not indicate the need for certification of the agreement. However, hiring a notary will allow you to avoid unfounded claims between former spouses in the future. It is first necessary to collect a number of documents, the list of which is defined above.
Next, you need to wait while the notary checks the information received. If no violations or errors are identified, the specialist explains the legal consequences of the decision made, verifies the legal capacity of each spouse and certifies the agreement.
Additionally, you will have to pay for notary services. The amount of costs depends on the actions performed by the specialist, as well as on the chosen office.

A sample agreement on establishing a procedure for communicating with a child is available.

If the spouses were unable to agree on the terms of participation in the life of the baby, the husband or wife must contact the district court. Establishing custody of children during a divorce, in this case, occurs as follows:

Collection of documents, the list of which is defined above.
Drawing up a statement of claim taking into account the provisions of Art. 131 Code of Civil Procedure of the Russian Federation.
Submission of documents to the district court at the place of residence of the spouse, with whom disagreements regarding the establishment of child custody in the event of a divorce are resolved (Article 24 of the Code of Civil Procedure of the Russian Federation).
Taking part in the proceedings and defending one’s own position stated in the claim.
Waiting for a court decision.

A sample application to determine the procedure for communicating with a child in court is available.

What exactly the verdict of the government representative will be depends largely on the completeness of the evidence base. Therefore, before going to court, it is important to collect as many required documents as possible and, if necessary, attract witnesses.

Benefits for mothers

Since about the mid-twenties of the last century, an approach has prevailed in world judicial practice, according to which mothers began to be given preference when deciding which parent to keep the child. Legal researchers associate this with the widespread dissemination of S. Freud's theory about the special role of the mother in the life of the child.

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Based on research by psychologists, judicial institutions increasingly gave children to their mothers, this was especially evident in the sixties. The maternal approach is even included as one of the core principles in the UN Declaration of the Rights of the Child.

Principle No. 6 of the Declaration proclaims maternal priority for young children under 10 years of age. It is possible to deviate from it only in the case when the personal and moral qualities of the mother do not allow the possibility of leaving the child with her.

Russian courts have also adopted this doctrine and, when deciding the fate of young children, as a rule, leave them with their mother. To change the priority, you need to make an effort and prove to the court the existence of exceptional circumstances that prevent the child from leaving his mother. Such circumstances include:

facts confirming the adverse impact of the mother’s behavior on the child or his upbringing;
facts about illegal actions of the mother in relation to the child;
facts about actions contrary to the interests of children;
inability to fulfill parental responsibilities;
immoral behavior, repeatedly leaving the child alone or with strangers;
facts that may serve as grounds for deprivation or restriction of parental rights.

Thus, in cases of determining the terms of guardianship of a young child, one should focus not on proving the existence of the best conditions for the upbringing and development of the child, but on substantiating arguments about the presence or absence of exceptional circumstances formulated in the sixth principle of the Declaration.

The child’s opinion when determining custody in a divorce

In Art. 57 of the RF IC stipulates that a minor citizen has the right to independently defend his own interests when resolving any issues that affect the rights of the child. In accordance with this article, when determining custody as part of a divorce procedure, the opinion of a child whose age has reached 10 years must be taken into account. An exception is cases when the decision made by the child is contrary to the interests of the minor. You can learn more about the child’s opinion when the official relationship between mother and father breaks down on our website, in the article: “The rights of children when their parents divorce.”

Timing and cost

Resolution of issues regarding the participation of spouses in the life of a child occurs within the framework of the divorce procedure (Article 24 of the RF IC). If it is impossible to reach an agreement on their own, when filing a claim to establish custody of the baby during a divorce, the husband and wife will have to pay a state fee for divorce in the amount of 600 rubles (Article 333.19 of the Tax Code of the Russian Federation). Regarding processing times:

Within a month from the date of filing the claim, the first trial is scheduled (Article 154 of the Code of Civil Procedure of the Russian Federation).
It is not uncommon when it is not immediately possible to understand all the nuances of the case and determine the terms of child custody during a divorce. In this regard, the trial may last more than one month.
After the decision is made, you will need to wait until 30 days have passed, during which the dissenting party can challenge the verdict (Article 321 of the Code of Civil Procedure of the Russian Federation).

For your information
, if there are no disagreements between the spouses regarding joint custody of a child during a divorce, drawing up an agreement on children may take no more than a day. As for the costs, their size is determined taking into account the desire of the husband and wife to attract a notary. If the spouses decide to do without a specialist, the agreement does not require expenses. If you intend to certify a document, you will need to pay for notary services, the cost of which is determined by the tariffs established in the office. On average, the price does not exceed 5 thousand rubles.

Joint custody of parents over a child

Joint custody of a child by birth parents does not mean that the mother and father are appointed guardians in the conventional sense. In this situation, guardianship is understood as the fulfillment of parental responsibilities for the upbringing, maintenance and education of a minor.

Parents often misunderstand this term. The mother and father are not given guardianship responsibilities in the conventional sense.

Parental guardianship is the full range of parental rights and responsibilities in relation to a natural child. In essence, the principle of joint custody is implemented in the biological family.

European realities

The practice of joint custody exists in Europe. It allows both parents to participate equally in raising children and communicate with them. There are two types:

Legal. The minor permanently resides with one parent. The second has a real opportunity to actively participate in his life. All decisions concerning the child are made by the former spouses together. A minor can come to visit the other parent for several days. Issues of education, religion, and moral education are resolved jointly.
Physical. The order of residence of the child with each parent is established. He spends the same amount of time with them.

This form is possible if the parents live close to each other, the child will be able to continue going to kindergarten or school.

American version

In the United States, this option of child custody in the event of separation of parents is very popular. American studies have confirmed the positive impact of shared custody on children.

Most often, in the case of separation, the child remains with the mother, this negatively affects the development of the minor. The study involved families with children under 8 years of age.

Joint custody refers to the constant involvement of both parents in the child's life. For example, a minor lives in a house with his mother. And his father takes him to school and clubs every day.

That is, the second parent participates in the child’s life on an ongoing basis. He not only has an advisory voice in resolving important issues in children's education, but also constantly communicates with him.

Thus, joint custody of a child is possible only when living in the same locality or in territorial proximity.

Important! If joint custody is established over a child, then child support is not provided.

Russian practice

Advantages and disadvantages of joint custody

It is quite understandable that the spouses want to take part in the child’s life even after the divorce. Registration of joint custody of a child after a divorce allows you to avoid most of the complications associated with disagreements between ex-husband and wife regarding a minor citizen.

By concluding an agreement, or through legal proceedings, spouses can determine in advance the full range of rights and responsibilities that parents will have over their child after a divorce.

As for the disadvantages of this option of fixing the conditions for participation in the child’s life, it is worth noting the absence, as such, of joint custody of a child after a divorce in Russian legislation. Therefore, often after the dissolution of the official union of the spouses, disagreements arise again between the parents of the baby on issues relating to their common child. For example, often an ex-wife does not allow them to see their joint child after a divorce.

Advantages and disadvantages of co-parenting

The very idea of joint custody was based on the desire to protect the child from negative emotions associated with the absence of one of the parents. This seems to be the main advantage of this approach.

Other benefits of joint custody:

Children after 10 years of age often have to make a choice in favor of one of their parents in court. If joint custody is awarded, the child will be freed from this unpleasant decision.
The child feels part of a family union, albeit an inferior one.
The child receives everything he needs. Living with a single mother often involves financial difficulties (child support is not always enough).
The child feels that both parents need him equally.
The child actively communicates with relatives on both lines, which has a good effect on his psychological state.

Disadvantages of Shared Custody:

If a child lives either with his father or with his mother, constant moving gets on his nerves. Each family has its own rules. It is difficult for a minor to adapt to different behavior patterns.
The school may be too far from where one of the parents lives.
It’s exhausting to collect things while endlessly rushing from apartment to apartment.
Fertile ground for manipulation by parents. “Are you forbidding me to do this? Then I go to my mother. And forever!” Psychologists note that such an approach dampens the child and makes him spoiled.

Experience shows that the advantages of co-parenting after divorce outweigh the disadvantages. If you get along well with each other after the divorce process, strive to ensure that the child maintains communication with each of the parents.

Father's custody of a child after divorce

In order for the baby to be placed under the guardianship of the father after the divorce, it will be necessary to prove in court that the mother:

leads an immoral lifestyle (as an example: engages in prostitution);
suffers from alcoholism, drug addiction;
is unable to provide financially for the child;
has a criminal record for intentionally causing harm to human health and life.

At the same time, the baby’s father himself should not have anything in common with the above positions. In addition, in the question of how to leave a child with the father after a divorce, the desire of the minor citizen to live with the parent is additionally taken into account.

Joint custody of a child after divorce

Clarification: the word “guardianship” in this context does not mean “guardianship” - אפוטרופסות. a is used as a term that secures the parent’s right to be with after a divorce: allocate a room and adapt it for living, full/partial residence of the child on the territory of the parent, including his maintenance and current expenses (food, clothing, study).

The Legal Capacity Law limits the father's rights to parental custody after a divorce and sets an age limit - until the child is 6 years old, the main guardian is the mother.

Despite the recommendations of the public commission (2011), headed by prof.

How to ensure that during a divorce the child is left with the father? (lawyer's answer)

Hello.

Now the question of divorce from my wife has arisen. She is having an affair on the side, and because of this, a conflict arose. All my life I have been raising a child, not to say that my wife did not do it either, but the child was always and everywhere with his father: when he was born, I took a month off to help my wife at first, and then mainly at night I got up, rocked him to sleep, etc.

- I, well, and now playing games, mostly me.

What to do if your spouse does not comply with the court's custody order?

If the husband does not want to follow the prescribed conditions regarding participation in the life of the child, the wife must apply to the court with a statement. When drawing up a claim, you must take into account the provisions of Art. 131 of the Code of Civil Procedure of the Russian Federation, pointing out the violation by the spouse of a previously made decision on child custody after divorce.

When going to court, the mother of the baby, in order to defend her position, will also need to collect documents confirming the facts of the husband’s non-compliance with the prescribed conditions for custody of the child after the divorce. In addition to written evidence, it is allowed to involve witnesses, as well as the use of photo, audio and video materials.

Problems and nuances

Registration of child custody after a divorce in Russia, when compared with other countries, is often complicated by a massive bureaucratic mechanism. Collecting documents, checking papers, interacting with guardianship and trusteeship authorities - all this requires a lot of time and desire. It is not uncommon for a person who intends to obtain the right to care for a child to lose all desire to further achieve his goal by the end of the registration procedure.

Another Russian problem is the absence of the term “shared parental custody” in the legislation. Now this definition should be understood as the equal participation of father and mother in the lives of children. However, such an omission, associated with the lack of explanatory provisions and regulatory positions in regulations, makes it difficult to formalize joint custody upon divorce.

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