Determination of the order of communication with the child during a divorce. Determination of the order of communication, meetings with the child. Judicial practice Establishing the time of communication with the child
By the decision of the Gagarinsky District Court of Moscow, the paternity of citizen “A” was recognized in relation to the minor citizen “B”. The ruling of the Gagarinsky District Court of Moscow approved a settlement agreement between citizen “A” (hereinafter referred to as the defendant) and citizen “K” (hereinafter referred to as the plaintiff), who is the mother of the child, according to which the parties established the procedure for communication between father and son. However, due to the circumstances, citizen "K" was forced to again apply to the Gagarinsky District Court with a claim to change the procedure for communicating with a minor child.
Before going to court, citizen “K” turned to for advice. She pointed out that since the signing of the settlement agreement, there have been significant changes in the state of health of the minor child, and therefore it is practically impossible to comply with the previously established procedure for communicating with the father. The father, contrary to the recommendations of doctors, does not take into account the state of his son's health and continues to demand more and more time for communication with manic persistence.
The lawyer explained that the order of communication, even approved by the court, may change over time. On the advice of Polyak M.I. A statement of claim was prepared to change the order of communication with a minor child. At the hearing, the interests of the plaintiff were represented by lawyer Polyak M.AND. The defender argued that changing the order of communication of citizen "A" with his son is necessary due to the deterioration of the latter's health and in accordance with the recommendations of doctors. In accordance with paragraphs 1 and 2 of Article 451 of the Civil Code of the Russian Federation of November 14, 2002 N 138-FZ, a significant change in the circumstances from which the parties proceeded when concluding the contract is the basis for its amendment or termination, unless otherwise provided by the contract or does not follow from his being.
According to paragraphs 1 and 2 of article 66 of the Family Code of the Russian Federation of December 29, 1995 N 223-FZ, a parent living separately from a child has the right to communicate with the child, participate in his upbringing and resolve issues of the child's education. Communication between a father and a child should not have a harmful effect on his psyche, body and soul. At the court session, the plaintiff pointed out that the child does not have the opportunity to go on vacation abroad, since he is contraindicated for experiences, nervous shocks, including those associated with a change in place of residence. The lawyer presented evidence to the court confirming the need to change the order of communication between father and son. The lawyer proved that since the conclusion of the settlement agreement, the circumstances have changed significantly: the child changed kindergarten, began to attend additional sports classes, his psychological state of health became unstable. The lawyer managed to convince the court that it was possible to change the previously established order of communication between father and son.
In accordance with Article 451 of the Civil Code of the Russian Federation, Art. 63,65,66 RF IC, guided by Article.Article. 194-198 of the Code of Civil Procedure of the Russian Federation, the court decided: to satisfy the claim for changing the procedure for communicating with the child. Establish a new procedure for communication between a father and a child, in accordance with which to provide citizen “A” with the right to pick up the child from kindergarten at the end of classes every Tuesday and communicate with him, provided that the child returns to the place of his actual residence with his mother no later than 20:00 ; give citizen "A" the right to pick up his son every Saturday and communicate with him with
09.000 to 20.00. During the summer holidays, taking into account the opinion, state of health and consent of the child, the father has the right to spend vacation with his son for 14 days, agreeing on the place and time of the vacation with the mother of the child no later than 30 days before the expected start date of the vacation. To oblige the father, while being with the child, to observe the child’s day regimen and the child’s usual diet, the recommendations of doctors, information about which citizen “K” is obliged to provide in writing. To oblige the father to contribute to the moral education of the child, not to attend events with him that could adversely affect the psychological health of the child, to coordinate with the mother participation in sports and entertainment events. If the father is unable to use the time provided to him to communicate with the child, oblige him to notify the mother in a timely manner, who has the right to use this time of the child at her own discretion.
Divorce is a real test for everyone. However, children are the most vulnerable in such situations. After the divorce process, the former spouses are forced to leave, as a result of which there is a need to understand how and where the child should spend most of his time.
Features of the statement of claim to determine the order of communication of the child with parents
Ex-spouses must prepare for the divorce proceedings. The ideal option would be to determine a line of conduct that can suit each of the two parties. In order to find the desired compromise and take into account the interests of the child, it is advisable to forget about mutual insults, negativity after quarrels. Even if the divorce is not to your liking, this event is extremely important to accept, to realize. Only those former lovers who have come to terms with parting can independently determine the features of the further upbringing of the child and refuse the excessive influence of the judiciary.
If the husband or wife objects to the proposed option, a judicial body will need to be involved to resolve an important issue. This is determined by article 24 of the RF IC.
During the trial, the interests and needs of the child will be taken into account:
- Opportunities to create living conditions for children. Specialists evaluate the material and housing provision of each party.
- The degree of family attachment to mom and dad, as well as to other family members.
- Features of the character of father and mother.
- Possible addiction to alcohol or drugs.
- Attitude to family responsibilities.
- Changes in the marital status of each of the former spouses.
It should be noted that in reality, representatives of the court can also evaluate other aspects, since the main task is to protect the interests and rights of a growing person.
When submitting documents, and therefore - when applying to the court, the state fee must be paid. The size of the state duty, mandatory for payment, is determined by the Tax Code.
The court will examine all the circumstances and features of the life of both parents, after which it will make its decision. It is assumed that it will be necessary to observe all the interests and rights of minor children. Article 65, paragraph 3, determines that in rare cases, it will be necessary to place the children elsewhere before the completion of the trial.
If a potential threat to the health of children is suspected or the conditions for raising children are noted as unacceptable, until the final decision of the court, the children must live elsewhere. After the end of the trial, the children will live with the parent chosen by the court.
What rights does a parent have who lives apart from their child?
Article 61 of the RF IC defines the equality of rights and obligations between mother and father in relation to their common children. At the same time, changing the place of residence does not change this basis of education. Even the parent who lives separately from the child should take part in the upbringing of his child and provide financial assistance.
So the following rights are reserved:
- Communication and education of the child;
- Checking information from schools, clinics and other institutions. Thus, the parent can control the learning outcomes, health status and other important facts of the life of his child;
- Holidays with a child;
- communication with other family members;
- providing financial assistance for the life of a child.
Ways to communicate with your child
Parents of a child who ceases to live together must enter into a written agreement to determine the specifics of communication with children. The document is drawn up in free form, but it should specify the days and hours, the place of meetings. Signatures of both parents are required for the agreement to become legally binding. It is advisable to prepare the document before the start of the trial, as soon as in this case it is possible to speed up the resolution of the existing issue.
It should be noted that the restriction or prohibition on the communication of a child with a parent who lives separately is not allowed. Otherwise, there is a violation of the current legislation of the Russian Federation, as a result of which a well-deserved punishment may occur.
What circumstances need to be taken into account?
When determining the circumstances of communication and pastime of the child, it is also necessary to pay attention to certain aspects in order to successfully fulfill parental obligations:
- the work schedule of the parent who lives separately;
- the need to deliver the child to training, various classes at school or preschool lessons (joint actions of the former spouses must be agreed upon taking into account the interests of the child);
- features of the baby's life (it is undesirable to make an appointment at a time when the child is sleeping, studying, playing sports or art);
- the behavior of a parent living separately during communication with the baby (you can not set the child against the mother or father);
- whether meetings with a parent who lives separately are not harmful.
Of course, it is impossible to take into account all the nuances in the agreement. However, former spouses should keep in touch with each other and voice emerging requests, trying to avoid a legal scandal.
Schedule of communication with the child
It is advisable to attach a schedule of communication with the child to the statement of claim. In this document, you need to provide an approximate or exact schedule of meetings between the parent and the child. Moreover, it is desirable to indicate clarifying aspects regarding meetings:
- ways to meet with the estranged parent;
- meeting place;
- duration of real communication.
In the chart, you can also list correspondence on the Internet or via SMS, phone calls.
It is advisable to provide for the possibility of spontaneous meetings that were not pre-planned and agreed upon. If the estranged parent suddenly has time to meet with the child, there should be such an opportunity. In addition, in some cases, assistance may be required regarding the pastime and organization of the leisure time of the child.
You will need to make a schedule of communication with the child yourself. To do this, it will be necessary to take into account the peculiarities of the relationship between everyone (former spouses, the child's attachment to mom and dad), circumstances. In case of unresolvable difficulties, it is advisable to consult with a lawyer.
Features of resolving issues of communication and upbringing of a child with the participation of the court
However, what if the former spouses could not agree with each other? In this case, father and mother must go to court in order to successfully resolve the issue regarding the peculiarities of communication with the child.
Representatives of the court will already take into account numerous aspects, including:
- the salary of each parent;
- availability of living space;
- having a permanent job;
- features of the work schedule: shifts, number of days off, duration of shifts.
It is important to understand that the court will take into account even the testimony of witnesses, so neighbors, kindergarten teachers or school teachers can be involved in resolving the issue. The fact is that the court must draw up a correct and complete picture of the family.
Children who have reached the age of ten can declare their wishes regarding living with their father or mother. However, the opinion of the child may not always be sincere and based on truthful moments. In some cases, an upset toddler may make a certain decision to spite one of the parents.
The court decision will provide an approximate timetable for the resident parent to communicate with the child. At the same time, the document will indicate such information as the duration of communication, the features of meetings, the conditions for returning the child to another parent.
Features of the participation of guardianship authorities
Guardianship authorities have a complete picture of all families in a particular region. Thus, it is the guardianship authorities who perfectly know all the important nuances. Not surprisingly, the representatives of the PLO must develop proposals before the start of the trial.
It is important to note that for the court, the opinion of guardianship officials regarding the residence and upbringing of children will be decisive. The main task is to protect the interests and rights of minor children.
In what cases is a forensic psychological examination carried out?
If one of the former spouses is sure that the other is behaving inappropriately because of mental problems, the possibility of conducting a forensic psychological examination is assumed. At the same time, it is desirable that the opinion be objective.
Only a psychiatrist can make a correct conclusion about the presence or absence of mental abnormalities in a person. In this case, if a disease is detected, it will be possible to determine the severity of the condition. As a result of the examination, it is possible to determine the further possibility of communication between the child and the parent.
Responsibility for non-execution of a court decision
If the parents cannot reach an agreement, legal proceedings are required. In this case, only the interests and rights of the child are taken into account. The decision made by the court is binding.
At the legislative level, it is supposed to impose penalties. However, such punishment often turns out to be extremely frivolous if the court decision regarding the further place of residence of children is violated.
Can the court dismiss a claim for contact with a child?
The court may refuse to assist in making a decision to determine the order of communication if one of the parents:
- beats up a child
- forces the child to commit bad deeds;
- comes to meet the child;
- suffering from addiction to drugs;
- behave in an unworthy or unlawful manner.
Thus, if there is even the slightest risk to the child, the possibility of a ban on any communication is assumed. Such exceptions are provided for at the legislative level.
Litigation in Russia
The courts consider different situations, so an individual approach is expected.
Example 1
Citizen E. lives separately from his family - in another city. The mode of communication with a 6-year-old daughter was determined in court. Citizen E. wanted the child to travel all summer to another city. However, the court allowed residence in another city only for a month, focusing on the interests of the girl. The divorce process has only recently been carried out, and the child is still under stress, so long-term living without a mother in an unusual environment is impossible.
Example 2
The court determined the schedule of meetings of a 7-year-old boy with his father, who lives separately. The court allowed the father to see his son once a week in the evening, and also twice a month - in the daytime on weekends. The Court is confident that such a schedule is optimal. However, the requirement to communicate only in the presence of the maternal grandmother was rejected, as such communication could interfere with the boy's sincere communication with his father.
Example 3
The mother of an 8-year-old boy, who spent two hours on weekends with his separately living dad, applied to the court. However, during one of the meetings, the boy's aunt saw how the child's father was drinking alcohol in the park with a friend in the presence of his child. After the remarks, the father began to insult the baby's mother and her sister, an aunt, who witnessed the ugly scene. It was established by court order that a father could communicate with his son only in the presence of the mother.
It is not necessary to assume that a court decision after a divorce is issued once and for all. If circumstances change, a lot can change. The father or mother of the child has the right to file a new claim, which will even be the opposite.
Parents who are ready for reconciliation can independently resolve all their problematic issues and avoid unwanted litigation.
Former spouses rarely decide to sue with a request to change or cancel the order of communication of the child (children). This is due to the fact that many believe that the earlier decision on the establishment by the judge of the procedure for communicating with the child is not subject to change.
However, if there are good reasons, the court has the right to make adjustments regarding the procedure for communicating with the child of the former spouse (wife).
The right of a parent living separately to communicate with a child
If the parents are divorced, the parent who lives separately has the right, on the basis of Art. 66 of the RF IC to freely communicate with the child. It has the authority to:
- for the upbringing of the child;
- participate in taking part in solving the issues of the child's education;
- take part in other important issues about the life of your son or daughter.
Most often, of course, the child stays with the mother and the question of taking part in the upbringing of children is more relevant for fathers.
Parents can independently conclude an agreement about this. If they failed to agree, then the parents need to go to court to resolve this conflict. At the request of one of the parents (both parents), the court has the right to determine the mode of communication between the child and the parent living separately. A claim of this category is filed in a district court, consideration of this issue may take place together with a claim for divorce by the parents, or it may be considered as a separate claim. Guardianship and guardianship authorities are also involved in the consideration of this case in order to determine the procedure for communicating with a daughter or son until the period when the court decision enters into force.
The decision taken in court is binding, the mother (father) living together with the child should not interfere with communication with the child. If the parent who lives with his son/daughter prevents this, he may be held administratively liable.
How to change the way a child communicates with an ex-spouse
As well as establishing the order of upbringing and communication with the child, change or cancel the way a child communicates with a former spouse also possible out of court and judicially. In practice, most often the change of such a regime is carried out by obtaining a court decision. The reasons for such a requirement of one of the parents can be very diverse:
- changes in the living conditions of the son/daughter;
- the child has changed schools;
- got sick;
- the parent with whom the child lives urgently needs to go on a business trip;
- other reasons.
For example, a child and his mother moved to another district of the city, and since there is now a large distance between the addresses of the parents, it became necessary to change the mode of communication between the parent and the child. Or the mother needs to often go on business trips for work and, accordingly, now it is necessary that the father spend more time with the child.
However, a parent who lives with the child may wish to reduce the duration of father-child visits if she learns that the father is abusing alcohol.
In such circumstances, if there is no agreement between the parents, they need to apply to the court to change the mode of communication with children.
How is the change in the order of communication of the ex-spouse with the child through the court
When parents cannot reach a compromise, it is necessary to resolve a dispute about changing the order of communication in court. To do this, the interested parent must indicate in his statement of claim that the previously established judicial procedure for communicating with the child cannot be enforced for certain reasons (indicate specific reasons).
The most common the reason for changing the order of communication of the child with the former spouse is inconvenient schedule for parent-child communication. In practice, there was a case (Kuzminskoy District Court, Moscow) when earlier the following schedule of communication between father and child was established by court order: from 07:00 Saturday to 18:00 Tuesday. In court, the ex-wife stated that the decision to change the order must be made in view of the fact that the child is now in school and for his comfort it is better for him to do his homework.
The father did not agree with the claim of his ex-wife, but stated that it was really necessary to change the order of his communication with the child, but by increasing the time spent with the child. That is, if earlier the order of communication was established from Saturday morning to Tuesday evening, now the father considers it appropriate to take the child to the mother after the end of classes on Wednesday. The father also emphasized that it is difficult for the child to concentrate on the transition from father to mother, and therefore it is best for him to stay with his father and concentrate on doing his homework.
Alas, the court refused to satisfy both the plaintiff's claims and the father's (defendant's) counterclaims. It was decided to dismiss the claim and leave the previously existing procedure for communicating with the child: from 7 am on Saturday until 18:00 on Tuesday. The court did not accept the parties' arguments as valid (both the main and the counterclaim).
There is another example of resolving a dispute about changing the order of communication between parents living separately and children. The mother of the child, who lived separately from the child, applied to the Lublin Court, Moscow, the place of residence of the child with the father was previously established by a court decision. An agreement was concluded between the father and mother on the order of communication with the child, where it was established that she could see the child only once a week. The mother was not satisfied with this arrangement, and she filed a lawsuit demanding to change this situation and allow her to see the child not once a week, but from Sunday morning to Tuesday evening. The Court considered such a decision acceptable and one that would be in the best interests of the child.
Violation of the mode of communication of the former spouse with the child
If the father (mother), who lives separately with the child, does not have access to communicate with the child, since the wife forbids them to see each other, then he has every right to sue the court demanding to eliminate such violations.
Case from practice:
The father of the child appealed to the Golovinsky Court of Moscow, filing a lawsuit to eliminate violations of the procedure for communicating with the child by the ex-wife, who does not comply with this procedure. The court found that the father has the right to meet with the child from Friday evening to Sunday evening, as well as from Tuesday evening to Wednesday evening. The ex-wife ignored this order. The wife filed a counterclaim against the ex-husband's claim to change the mode of communication with the child. The court did not take into account the arguments of the wife, but recognized the fact that she really violated the order of communication between the father and the child. The ex-wife was given a warning about the inadmissibility of further violating the established mode of communication between the father and the child.
Note that if the parent who lives with the child maliciously evades compliance with the court decision, the other parent may demand through the court that the child live with him.
Example:
The father of the child applied to the Kuntsevskaya Court (Moscow) with a request to change the place of residence of the child so that his son would live with him, and not with his mother. Earlier, the court established that the child remains with the mother, and the order of communication with the father was also established: on Fridays and Sundays. The court refused to satisfy the plaintiff's demands, but warned the mother about the inadmissibility of interfering with communication between the father and son. After this decision, for some time the mother strictly adhered to the established rules. But later, the ex-wife again began not to allow the father to see the child. And this means that the actions of the mother can already be regarded as malicious. With regard to non-execution of the court decision, enforcement proceedings began, the mother's unlawful actions were recorded. The second trial took place at the initiative of the father again with a demand to transfer the child for permanent residence.
The mother argued that a claim of this nature had already been filed and could not be considered again. However, such relationships are of a long-term nature, besides, the mother again allowed violations of the order of communication between father and child. Having studied the case file, the court granted the father's demands that the child now live with him.
To change not just the order of communication with the child, but his place of residence, you must have evidence. As a rule, you will have to sue more than once. When making a decision, the court will proceed from each specific situation, it is necessary that the fact of malicious failure by the second parent to comply with the agreement on the procedure for communicating with the child is established and that the transfer of the child to the second parent is in the interests of the son or daughter.
Cancellation of the order of communication of the child with the former spouse
The parent who lives with the child also has the right to petition the court for the father/mother to be prohibited from communicating with the child, on the basis that he causes harm (psychological or physical) to the child. However, the mother must have evidence that the other parent adversely affects the health or development of her daughter or son. For example, he suffers from alcoholism, he beat a child. In practice, it is not always easy to prove the fact that communication with a parent really harms the child, if we are not talking about serious violations on the part of the parents.
However, if the second parent suffers from chronic alcoholism, or if there is a court decision that the parent has committed a crime against his child, is abusing the child, then it is better to file rather than cancel communication with the child. They can also deprive the father / mother of parental rights if they ignore their obligations to pay child support.
One of the most difficult problems to be solved by breaking the bonds of marriage is the issue of further communication between parents and children. Despite the fact that one of them will no longer live in the same house with children, he does not lose the right to communicate with them and engage in their upbringing.
Often this problem is solved by applying to the court with a request to streamline communication with children. How is this process regulated, what actions to take and which authorities to contact?
When a married couple has decided to separate and there are no children in the family, divorce does not require much time and effort. Husband and wife apply to the registry office, and after a month their marriage is terminated.
In a situation where a common baby grows up in a family, the termination of the marriage takes place in court.
During the trial, the following issues need to be resolved:
- Which of the parents will stay with the children;
- Where will the children live?
- How will children contact the second parent.
How will communication between the children and the father who left them take place? Will the schedule of meetings with the child be determined by agreement, or will court intervention be required?
Following the end of the marriage and reaching a consensus on the question of who will live with the children, the next problem is how the parent living apart will exercise his right to participate in the educational process. Disputes on this topic are also possible when the marriage has not been dissolved, but the spouses live separately.
Parents' rights
Contributing to the upbringing of children is not only the right, but also the duty of each parent, including those who no longer live in the same apartment with the child.
Difficulties that arise in the process of raising children, parents should resolve:
- By mutual agreement;
- According to the interests of children;
- Taking into account the point of view of children.
Article 55 of the Family Code of the Russian Federation states: “A child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives.
The dissolution of the marriage of the parents, its annulment or the separation of the parents does not affect the rights of the child. In the case of separation of parents, the child has the right to communicate with each of them.
The fact that the father or mother does not live together with the children does not detract from their rights to participate in various areas of the child's life.
The parent, if he lives with the child, is not authorized to limit the contacts of the other parent with him, with the exception of situations when, communicating with children, the father / mother can harm the mental and physical health of the child.
But the fact of causing harm through communication with the second parent can only be established by the court. If the court does not find any harmful influence, then it may oblige one of the parents not to create difficulties in the communication of the child with the parent living separately.
Ways to resolve the dispute
There are two options for resolving a dispute about scheduling meetings with children:
- Conclusion of a voluntary agreement. If the mother and father find it necessary, it can be certified by a notary;
- By going to court. In case of failure to reach a compromise, the parent has the right to apply to the judicial authorities.
Voluntarily
An agreement on education may be concluded in the form of an oral agreement. However, if friction arises in an oral agreement, it will be more difficult to resolve them.
More guarantees are given by the conclusion of an agreement in writing. Here, too, the possibility of conflict situations cannot be ruled out, but if they arise, there will be a written confirmation of the compliance or non-compliance of the behavior of each of the parents with the terms of the agreement.
When drawing up an agreement, important conditions should be clearly stated:
- Will the child communicate with the second parent together or will the other parent be present at the meetings;
- Meeting place:
- The dwelling where the child lives;
- Apartment of the second parent;
- Public places (parks, attractions, sports grounds, etc.). The choice of places for communication with the child may be determined by the well-being of the child, the desire of the child, the weather, etc. The child and the parent should not meet exclusively in the apartment of the parent living separately.
- Hours during which communication will be carried out;
- The amount of time spent talking.
A copy of the agreement is submitted to the court along with the application for termination of the marriage. If it is established that the rights of children or parents are infringed by this agreement, the issue will be referred to the court for resolution.
A sample agreement can be downloaded
The following actions of a parent living with a child may serve as a reason for going to court:
- Creation of barriers for contacts of the child with the second parent;
- Isolation of a child from a separately living parent;
- Deprivation of the opportunity to influence the educational process.
Which court?
- At the place of registration of the defendant;
- According to the last known place of residence of the defendant or the location of his property, if the place of residence cannot be established;
- At the place of residence of the applicant, if:
- Together with the claim for the termination of the marriage, a request was made for the appointment of alimony payments;
- Applicant lives with children under eighteen;
- For medical reasons, it is difficult for the applicant to travel to the place of residence of the defendant.
An application to the court is sent by the interested party or its representative.
Application to the court
The reason for the start of the hearing is the filing of a claim by the party that considers its rights infringed. The application form can be downloaded
Attached to the claim are:
- Evidence supporting the information contained in the claim;
- Power of attorney (if a representative is involved in the case).
The applicant does not bear the burden of paying the state fee in this case.
Refusal to communicate with the child
In accordance with Article 66 of the RF IC, a parent living with children does not have the right to prohibit them from communicating with another parent, but only in cases where communication does not harm the health and psyche of children.
Of the applications submitted to the court to determine the order of communication, as a rule, 90% are satisfied.
The judge may decide to dismiss the claim if the association is found to be detrimental to the children.
The court can make such a conclusion by analyzing previous contacts with the child, if it establishes:
- The fact of committing violent acts against a son or daughter;
- The parent encourages the child to commit actions contrary to the foundations of morality;
- The parent came to the meeting under the influence of alcohol (drugs);
- Speak negatively about the other parent;
- In order to accurately establish whether contacts with a parent are a source of danger for a minor, the court has the right to appoint an expert study.
Authority of guardianship and guardianship
The body of guardianship and guardianship is certainly called upon to participate in the court session.
The body of guardianship and guardianship is:
- Conclusion on the issues of determining participation in the educational process;
- The act of examining the living conditions of the child.
The court is authorized to express full or partial agreement, or full disagreement with the submitted opinion. If the court does not agree with the conclusion, the reasons for such a conclusion shall be reflected in the decision.
Important Facts
The main factors influencing the judge's position are:
- The real existence of barriers to contact with the child;
- How deep is the emotional connection of the child with the father, mother, brothers, sisters and other family members;
- The relationship between the child and parents;
- The age of the child;
- The state of health of the child;
- Moral qualities of father and mother;
- Has either parent remarried?
- Financial security of parents;
- Working hours of mother and father;
- Occupation of parents.
The age of the child is one of the fundamental conditions that influence the opinion of judges when making a decision. A minor (under the age of three) child is more in need of mother's care than father's attention. But this does not mean that the father can be removed from participation in the fate of the child.
Article 67 of the Code of Civil Procedure contains a provision that “the court evaluates the evidence according to its inner conviction, based on a comprehensive, complete, objective and direct examination of the evidence in the case. No evidence has a predetermined force for the court.”
Child's opinion
When such disputes arise, the opinion of the child plays an important role. The opinion of children who have reached the age of ten must be taken into account by the court.
In the view of children on the situation and the decisions they make, one of the parents often has a great influence, and in order to make the right decision, it is necessary to know exactly his personal position. For this purpose, the court conducts an expert study, initiated by either the judge or one of the parents.
Consequences of non-execution of the court decision
It is the duty of every parent to follow the court orders.
In case of non-execution of a judicial act, a fine of two to five thousand rubles may be imposed on the guilty parent, and arrest up to five days may be applied.
Payment of the fine does not relieve the perpetrator of the obligation to execute the judicial act and allow the other parent to resolve issues related to the upbringing of children.
If the parent continues to maliciously evade the implementation of the decision, the court may adopt a new act, which will determine the place of residence of the child with the other parent.
For the harmonious development of personality, the child needs love, attention and care from both parents. It is necessary that meetings with mom and dad are regular.
Judicial practice on determining the procedure for communicating with a child
Such cases are classified as civil cases related to the upbringing and protection of children's rights. Often, after parting, the relationship between parted husbands and wives is of a conflicting nature, which provokes litigation over the upbringing of children.
Cases in this type of claims are considered by district courts. Applicants do not bear the burden of paying the state fee, as these cases are related to the protection of the rights of the child.
In addition to the parties (mother and father), it is impossible not to involve the body of guardianship and guardianship in the consideration of the case.
When considering a case, the court should prioritize, first of all, the needs of the child, and only then the rights and needs of the parents.
Family law provides for the protection of the parent's right to communicate with his child, in addition, the parent living with the child is obliged not to obstruct mutual contacts.
Similarly, the child's right to meet with a parent living separately is protected. However, in addition to the above, Article 66 of the Family Code of the Russian Federation enshrines the right of a parent living in the same apartment with a child to limit or completely prohibit the contacts of the second parent with the child if he sees the harmful effect of such communication on the psyche of the baby, physical well-being and his moral development.
Statistics on court cases show that in the case of filing such a claim, positive decisions are made in 70% of them. This suggests that parents proceed, first of all, from their own interests, forgetting about the needs of their child.
More often, a minor child stays with the mother, and she, wanting to harm her ex-husband, creates obstacles for the father to communicate with the children, despite the mutual affection between them.
The duty of the court is to take steps towards a peaceful settlement of the dispute. Turning again to the statistics, you can see that in 40% of cases such cases end with the conclusion of a settlement agreement, or the party waives the claim.
Preparing the case for trial, the court instructs the guardianship and guardianship authority to draw up an act of examining the living conditions of the parents, to find out how attached a child under 10 years old is to each parent, to assess the degree of influence of parents on the upbringing and psyche of the child. For this purpose, it is necessary to find out personal data characterizing the parents.
To date, in such cases, a psychological examination is increasingly being prescribed, the purpose of which is to find out how communication with each of the parents is in the interests of the child. There are frequent cases when participation in conversations between a psychologist and a child during an examination led to reconciliation of the parents.
If it is necessary to determine the level of attachment of the child to the father and mother, the court may instruct the body of guardianship and guardianship to conduct a conversation with the child.
The judge may also independently conduct a conversation with the child outside the court session with the obligatory participation of a teacher. If the child is already ten years old, he is interrogated in the courtroom in order to get his opinion.
When making a decision taking into account the age of the child, the state of health, the depth of emotional ties with the father and mother, living conditions, the court must strike a balance between the rights of the separately living parent and the interests of the child.
All this should be expressed in the operative part of the decision. It also details the schedule of meetings with children. The more conflicting the relationship between the parents is, the more carefully the court must specify all the key points of the communication procedure.
When considering such cases, the court may decide to dismiss the claim only in extreme cases, namely:
- The father/mother turns the children against the other parent;
- The use of physical violence against a child is allowed;
- The parent encourages the child to commit immoral and immoral acts;
- When communicating with children, the parent demonstrates indecent behavior;
- May commit illegal acts in front of children;
- Allows other abuses of parental rights.
The place and time of communication between parents and children often become the subject of heated debate. When regulating the time of communication, the court takes into account how strongly the child is attached to the father / mother, the age of the child, whether the parent has a desire to educate and communicate with the child, the moral character of the parent, the degree of financial support for the child by the parent.
Therefore, when applying to the court with a claim, the parent should present the court with the maximum amount of evidence that will confirm the undoubted benefits of communication with the parent for the child. Characteristics, education documents, testimonies, especially given by educators, neighbors, teachers, as well as a medical report on health, can serve as evidence.
A parent who wants to limit or prohibit contacts of a child with a father or mother must collect evidence confirming the negative impact of such communication on the psyche, upbringing, health of the child, inconsistency with the interests of the child.
He can also submit a certificate of the child's illness, which prevents long visits with the parent and inform the court about the child's negative attitude towards meetings with the father / mother.
The following can serve as evidence: characteristics, information on the imposition of an administrative or criminal penalty, certificates of registration in a mental or drug dispensary, etc.
It happens that a parent living with a child who is not satisfied with the order of meetings determined by a court decision does not voluntarily comply with the decision.
Under such circumstances, the second party to the dispute should apply to the court to obtain a writ of execution and its subsequent transfer to bailiffs for enforcement.
But in cases where the parent is determined not to comply with the judicial act, it can be difficult even for a bailiff to put the decision into practice.
When the bailiffs visit the address of the place of residence, the child and the parent may not be at home, or the parent will not open the door, and breaking the locks may adversely affect the child's psyche.
At the first visit, the bailiff warns the parent living with the child about the possibility of imposing an administrative fine when evading the execution of a court decision, and if this happens again, about imposing an arrest.
In addition, the bailiff explains the possibility of transferring the child to another parent if the situation with non-execution of a judicial act is repeated.
In order for the child to be transferred to a separately living father or mother, they should re-apply to the court with a statement of claim in which they express a desire to live with the children.
But not always the parent who is interested in the execution of the court decision has the desire or the opportunity to live together with the child. Then the question of communication hangs in the air.
Summarizing the foregoing, we can conclude that the interests of all persons involved in the case, and primarily children, are met by the conclusion between the father and mother of a settlement agreement in writing, and in order for it to suit both parties, compromises should be made.