How to solve the issue of determining the place of residence with one of the parents in accordance with Russian law?
The issue of determining the child’s place of residence is regulated by the Family Code of the Russian Federation from 29.12.1995 № 223-ФЗ. Basically, Article 65 of the Family Code of the Russian Federation is dedicated to the issue of determining the child’s place of residence.
In accordance with p. 3 of the Article 65 of the Family Code, the children’s place of residence after the parents’ separation may be established upon agreement between the parents. In this case, our lawyers will work out an agreement on determining the place of residence, primarily under due consideration of the child’s interests, and will negotiate the ways of communication between the child and the parent living separately.
If the parents have not reached an agreement on determining the children’s place of residence, the dispute shall be resolved by the court under due consideration of the children’s interests and opinions. In case of a divorce proceeding, the court mandatory solves the question of with which parent the minor children will live after the dissolution of the marriage (p. 2 of the Article 24 of the Family Code of the Russian Federation).
The most complete list of the circumstances that shall be considered by the court in determining the child’s place of residence with one of the parents is given in “Practice Review of Disputes Settlements by Courts Related to Child-Upbringing” approved by the Presidium of Supreme Court of the RF, July 20, 2011 (published in “the Bulletin of the Supreme Court of the RF” No 7, 2012):
- one of the parents providing more advertence and attention to the child,
- parents’ social behavior,
- moral-psychological situation prevailed in the place of residence of each parent,
- instituting an administrative or penal action against child’s parents,
- criminal record,
- on file status at a psycho-neurological or a narcotic medical center,
- climate/geographical conditions of a child living with a parent, if parents live in different climate zones,
- availability of timely medical care,
- presence or absence of the parents’ another family,
- familiar social circle (friends, mentors, teachers),
- child’s attachment not only to the parents, brothers, and sisters, but grandparents living with them as one family as well,
- nearness of the relatives’ residence (grandparents, brothers, sisters, etc.) who can really help the parent, with whom the child stays to live, with the child’s upbringing,
- the convenient location of the educational institutions, sports clubs and institutions for further education attended by the child, and each parent’s ability to create conditions for attending such additional classes,
- the purpose of filing a claim.
This list is not exhaustive. The court may consider additional circumstances when deciding about determination of the child’s place of residence.
What are the grounds for initiation of proceedings about determination of the child’s place of residence?
The basis for initiating a civil case to determine the child’s place of residence by the court is a statement of claim of a non-custodial parent. The claim for determination of the child’s place of residence must contain the plaintiff’s claims based on the circumstances supported by the evidence. A parent applying for the child’s upbringing submits the statement of claim to the district court at the place of registration of the defendant.
When to file a claim to the court to determine the child’s place of residence?
The court decides the dispute about the place of residence of the children during the marriage of the parents, in case of separation, in the divorce case, and after the parents’ divorce.
Is the opinion of the child considered?
Under Russian law, the child’s opinion is considered when he/she reaches the age of 10. The opinion of the child about with which of the parents he/she wishes to live shall be heard during the hearing. The conversation with the child on the issues requested by the court can be performed both at the hearing and out-of-court by the Custody and Guardianship authorities, caregivers or teachers. Preliminarily, the court shall contact the experts of the Custody and Guardianship authorities with the request to make sure the presence in court will not adversely affect the child. Usually, the court interrogates the child in the absence of the parents to exclude their influence on him/her, but with the obligatory participation of a teacher and a representative of the Custody and Guardianship authorities. The court shall ascertain the reasons why a juvenile adheres to his/her opinion.
What evidence is accepted by the court?
The court accepts the written evidence: the local municipal statement of residence of the parents, the characteristics of the dwelling, the production, performance, social evaluation reports of the parents, the characteristics of the minor child from the educational institutions: kindergartens, schools, childhood development centers, medical institutions, or social welfare institutions.
The written evidence is the parents’ income statements and the certificates from the narcological, psycho-neurological, and tuberculosis medical centers, stating the parents are not on file. Special considerations are given to the witness’ testimonials that are not accepted in written form. A witness gives evidence orally in the course during the hearing. Quite often the court will request information about the parents’ involvement in the criminal and administrative responsibility, the parents’ criminal record.
How does the court establish the ability to create the environment conducive to learning and development of a child?
The court determines how much attention is paid to the child by each parent, the ability to obtain timely medical care, the living conditions of the child including a separate sleeping space, space for practice and games, and/or the presence of a separate room for a baby. The court considers the usual social environment – friends, neighbors, educational institutions attended by a minor child. To make a decision on determining the child’s place of residence, the court shall establish the occupation of each parent, the working hours, the long business trips, and the night shifts at work. The financial position of a parent and his/her family status, living with relatives or a new marriage, may also play a significant role in determining the child’s place of residence. However, according to our (Russian) legislation, the advantage of one parent in financial and living conditions is not an unconditional basis for satisfaction of his/her claims.
Is it possible to determine the child’s place of residence while the case is being considered by the court?
Since May 2011, the Russian law has enshrined the right of one parent to ask the court to determine the place of residence of a minor child for the period of consideration of the civil case until the entry into force of the court decision. The court shall make such a decision only if there is a mandatory positive conclusion of the Custody and Guardian authorities.
Is the participation of the Custody and Guardian authorities obligatory?
The court necessarily involves the Custody and Guardian authorities, which conclusion on the merits of the case and the act on examination of the living conditions of a child and the parents are of a great importance for the court’s judgment on the child’s place of residence. The Custody and Guardian authorities’ opinion letter should specify: the description of the relationship between the parents, as well as between the minor child and each parent; the personal qualities of each parent; the results of communication of the Guardian authority officer with a minor child; the opinion of the Custody and Guardian authorities of whether one of the parents can inflict on the child a psychological trauma; and the opinion of the Custody and Guardian authorities of which parent will continue to take care of the minor child. The court evaluates such reports together with all collected evidences. In the case of the court’s disagreement with the conclusion of the Custody and Guardian authorities, the legal judgment states the court’s motivation.
What rights does a non-custodial parent have?
A parent whose claim is denied by the court has the right to communicate with the child, the right to participate in his/her upbringing, development, and solving the issues related to his/her education. If one of the parents creates obstacles, it is possible to appeal to the court with a claim to determine the ways of communication with a minor child. The parent living with the child has no legal right to prevent it. The only exception is the case when such communication may cause mental or physical harm to the child’s health or his/her moral development. The claim on determining the child’s place of residence with one of the parents can be considered in court repeatedly because the family relationship is the ongoing process, so the court has no right to refuse an application for a new claim on determining the child’s place of residence due to the fact that the dispute has already been examined between the same parties.
What is the responsibility of the parent not abiding by the court’s decision?
If one of the parents does not abide by the court’s decision, the measures specified by the civil, the administrative, and even the criminal legislation may be imposed on him/her. If the court ruling is maliciously ignored, the court may adopt a resolution on the child’s transfer to the other parent, at the request of the parent living separately.
Why an expert psychiatric examination and other examinations for the cases of determining a child’s place of residence are performed?
Sometimes, the special knowledge in the field of psychology and psychiatry to establish the circumstances relevant to the case is required.
In such cases, the court assigns the examinations to:
- diagnose the intra-family relations and the relationship between the child and each parent;
- identify the psychological characteristics of each parent and the child;
- perform a psychological analysis of the overall situation (family conflict);
- determine the presence or absence of the psychological pressure on the child by one of the parents, and other issues.
In which case the children remain with the father?
Usually, this happens when the mother is not able to provide the maintenance and upbringing of the children. For example, she does not have the living conditions for the children (the housing, the source of income), does not take any actions for the maintenance of the children, suffers from alcohol or drug addiction; the child has strong attachments to the father (that’s what the psychological and psychiatric examination is for), while there is no attachment to his/her mother, or it is weak. Also, it happens if a child is over 10 years old, and he/she asks to stay with his/her father, while the mother does not have any advantages.