Family is the most important thing in every person’s life. At the beginning of the relationship, the spouses have no doubts: they will always be together and nothing will separate them. But unfortunately, the family idyll is very often broken up by everyday difficulties, the lack of mutual understanding and respect for each other. When it comes to divorce, spouses have to find compromises in resolving many issues, and the most important of them is the procedure for communicating with the child. In judicial practice, this nuance is often the subject of a dispute between parents.
What does the law say?
After the divorce, the residence of former spouses on the same living space becomes impossible. In judicial practice, the procedure for communicating with a child is established for one of the parents, who will live separately.
The main regulatory act that governs this issue is the Family Code of the Russian Federation. In particular, article 66 defines the procedure for communicating with a child. In judicial practice, the decisions of the Plenum of the Supreme Court of the Russian Federation are often used relating to the resolution of disputes on raising children after divorce. And although there is no case law as an independent institution in Russia, many courts of general jurisdiction take the position of the Supreme Court on these issues as a basis. It is also interesting that the Presidium of the Armed Forces of the Russian Federation issued a special Review of the practice of resolving disputes related to child rearing by courts - according to experts, the best source of information on judicial practice. The order of communication with children is devoted to a lot of information.
At the same time, it is impossible to use decisions of the RF Armed Forces as indisputable samples, each case is individual, therefore all circumstances of the case must be taken into account. How does the court determine the order of communication with the child? The position of justice depends on various circumstances, but first of all, the judge is guided by the provisions of the RF IC.
Is there a right to communicate with a child after a divorce?
If the parents divorce, this does not mean that one of them, who will live separately from the minor child, loses their parental rights. Dad or mother, having a different place of residence, have the right and are obliged to take part in the upbringing, education, life support of their offspring on an equal basis with their former spouse. That, in turn, should not create barriers for such communication with the child. In judicial practice, determining the order of meetings depends on many factors.
In addition, mother and father can figure out a solution to this issue amicably. If the former spouses find consensus, you won’t have to go to court: an agreement is made in writing on the procedure for communicating with the child of the father or mother and, if desired, is notarized. However, if communication with the second parent threatens the physical and mental development of the minor, interferes with the normal formation of his moral views and values, it is possible to ban meetings only through the court. If none of the parents wants to live separately from the child, custody and guardianship join the litigation. Protecting the interests of a minor, this state body examines the living conditions of each of the parents. The level of income, the presence of a permanent place of work, criminal record, etc. are also taken into account.
What affects the court decision
In most cases, from judicial practice, the determination of the procedure for communicating with a child occurs during divorce hearings. Usually, the spouse who initiates the divorce file a lawsuit with the court asking them to break off official relations and determine the place of residence of the child. Most often, with whom the minor will remain after the divorce, the mother and father agree peacefully.
In the vast majority of cases, according to a court decision, children live with their mother. In judicial practice, establishing a procedure for communicating with a child often dispenses with conflicts and objections from the father. If he does not agree with the position of his ex-wife and believes that the child will be better off with his dad, he has the right to go to court with a counterclaim. A parent who wants to pick up a child must prove that:
- has the best opportunity to create living conditions for his child;
- the child is more attached to him;
- the second parent has bad habits, leads an immoral lifestyle, does not fulfill his duties in relation to the child.
The judge, having studied all the circumstances of the case, will make a decision based on the principle of respect for the interests and rights of the minor. There are many court cases in the case on establishing the procedure for communicating with a child, and some of them last for several months.
Sunday dad
In judicial practice, there are many examples of how the order of communication with the child is established for the father. However, in this matter, the judiciary is guided by the letter of the law. In accordance with the Family Code, both mother and father are endowed with equal rights and obligations in relation to children, while the place of residence of the latter is not decisive. Mom and dad are required to support and participate in the upbringing of the child, wherever his place of residence is determined. A single parent can count on:
- unhindered communication with the child by court order (the procedure and schedule of meetings is also established by the court);
- direct participation in education and material support;
- the possibility of obtaining information from educational institutions about the progress of their offspring on request;
- obtaining health information from health facilities;
- joint vacation, a trip outside the region of residence.
The child has the right to see and communicate with relatives through a father or mother living separately. It is provided for in article 55 of the RF IC, which states that a minor has the right to meet with his grandfather, grandmother, brothers and sisters, and other persons. Whatever the relationship between father and mother, the child should not be infringed on his rights. He should be given the opportunity to see and communicate with all his relatives, even if they are citizens of other countries or reside abroad.
Agree without trial
The above article 66 of the IC of the Russian Federation provides for the possibility for parents to independently agree on the division of responsibilities for raising children after divorce. Mother and father who do not want to live together can reach a written or oral agreement on how to communicate with children. Establishment by the court of a schedule of meetings with the child in this case is not required. The document is drawn up in any form, but it should contain the following information:
- personal data of parents and all children;
- communication schedule;
- meeting place;
- additional conditions.
The signatures of both parents are the main confirmation of consent to the procedure for communicating with the child described in the document. The court sets the schedule of meetings as follows: mom or dad, who live in another place, take the children to their home on weekends once or twice a month, communicate with them on weekdays, communicate by phone and spend 1-2 times a year together vacation.
Many couples who decide to break up enter into an agreement before filing a divorce claim and subsequently present it at the hearing. In judicial practice, changes in the order of communication with the child proposed by the parents are not made. However, if for some reason the circumstances have changed, the judge reserves the right to revise the terms of the earlier agreement. Be sure to take into account the work schedule of the parent who does not live with the child. It also matters the desire of the former spouse to coordinate meetings, the willingness to keep in touch over the phone.
Restricting father or mother in contact with minor children is a direct violation of the Family Code. Despite the insults and reproaches, we must not forget that communication with the child and the past spouse is also expensive and priceless. At the same time, the court can take the side of the parent with whom the child’s place of residence is determined and prohibit or limit meetings with the minor if the former spouse sets up a son against the mother or father, does not monitor his health, consumes alcohol in his presence, adheres to unacceptable communication models with a minor, etc.
What do you need to see your child as often as possible?
There are several fundamental points on which the ability to regularly communicate with the child and spend time with him depends. First of all, this is the free availability of a dwelling, that is, a place where a parent could bring his children. It can be his own or rented. Also, the house must have all the conditions for one or more minors in accordance with age requirements - heating, hot water, a berth, desk, toys, etc.
To get the right to take the child to his home for the weekend, the parent must confirm that he has a stable income. Permanent employment characterizes him as a purposeful, responsible person. In addition, demonstrating his income, the parent declares the ability to independently maintain his offspring.
In some cases, it will be necessary to provide evidence that meetings with a father or mother living separately will not harm the child and will not conflict with his interests. If the parent has a criminal record, he will be required to positively characterize the employer. At the same time, the second parent is not prohibited from documenting the negative qualities of the ex-spouse by providing various certificates, bank statements about credit debts, copies of protocols on bringing to administrative responsibility, testimonies of witnesses who are ready to confirm the fact of domestic violence, etc.
How to schedule a meeting with a child
There is no specific list of circumstances that should be the subject of consideration during meetings. However, during the court’s determination of the procedure for communicating with a child, many judges rely on decisions of the Plenum of the Supreme Court of the Russian Federation, which take into account various circumstances of the case. The conclusion is made depending on each specific situation, so the list below is not final.
To make a court decision on the procedure for communication with the child and scheduling meetings, the age of the child is of paramount importance. For example, if the parents of a nursing baby are divorced, the court is unlikely to recognize the father’s right to take the baby to him for the weekend, especially if the baby is breast-fed. Most likely, dad will be able to visit the baby only in the presence of the mother on the territory of the baby’s permanent residence, where there are all the necessary conditions for feeding, care, bathing, etc. If we are talking about a more adult child who at least has already switched to general nutrition, then in this case the parent has a much greater chance of meeting without a mother. The older the children, the higher the likelihood that the court will establish a procedure for communicating with children, implying the second parent is without the presence of the first.
Equally important is the state of health of the baby. The court pays special attention to this issue. If the minor has a disability, the parent who would like to take him to himself must provide special conditions for the child to stay.
Dads or mothers living separately should also consider not only their work schedule, but also the day regime of their offspring. For school-age children, the opportunity to attend school is of particular importance, therefore meetings with the parent on weekdays will be permitted by the court only if they do not distract the child from the educational process. Otherwise, the court considers the stay with the second parent inappropriate for the interests of the child.
If the father or mother lives hundreds of kilometers from the minor’s permanent place of residence, it is unlikely that the court will take their side and allow weekly, many-hour trips that are contrary to the interests of the child. Most often, communication with a parent who is in another region is limited to summer holidays or New Year holidays.
When scheduling meetings, the duration of the stay with dad or mom is indicated. Moreover, it takes into account how much the minor is attached to the parent with whom he does not live permanently. If it is not possible to leave the child alone, the court may allow communication exclusively in the presence of both parents.
Is the opinion of the minor taken into account
In accordance with the Family Code of the Russian Federation, when considering cases on determining the place of residence of a minor, his opinion is taken into account when considering issues affecting his personal rights and interests. It is mandatory to take into account the position of a child who has reached 10 years of age. If the court has established a procedure for communicating with a child without taking into account the opinion of the latter, such a decision can be appealed. Although in some cases the position of the child is not taken into account in order to protect his rights and interests.
In some cases, the participation of minors is allowed in the trial, however, a child’s interrogation in court must be coordinated with the guardianship authorities. Presence in court should not have an adverse effect on the child or provoke stress. Turning to the judicial practice of the Supreme Court of the Russian Federation, it is worth noting that a call to a judicial hearing of a minor aged 10 to 14 years is advisable not only in cases of divorce, but also in hearings on adoption. Article 57 of the Family Code establishes the right of a child to be heard in court if the proceedings affect his immediate interests.
You can only interview a minor in the presence of a psychologist. Questions asked to the child should be appropriate for his age development. It is important that the survey was carried out under objective conditions, and the influence of interested parties, that is, parents, is completely excluded, so the child should give his testimony in the courtroom without the presence of his mother and father. In the course of the proceedings, the court finds out what kind of relationship a minor has with each of the parents, whether he is aware of the value of his interests, how he justifies the desire to stay with his mother or father, etc. The child’s opinion is taken into account in a court when making a decision, but it does not determine is an.
The role of third parties in litigation
In most cases of a divorce proceedings, the participation of guardianship authorities is mandatory, since it allows you to create an objective picture of the family during the hearing, especially when it comes to a “problem” family. When determining the order of communication with children, the recommendations of the guardianship and trusteeship bodies are taken into account. This organization is interested in protecting the rights of children, so the opinion of its representatives about who the child will be better off with is often decisive.
If one of the former spouses believes that the second parent is mentally ill, may cite instances of inadequacy in behavior, the court may order a forensic psychological examination. Communication with a sick father or mother is unlikely to benefit the child, but in order to categorically prohibit contact with a minor, it is important to determine what kind of mental deviation takes place and what is its severity. In some cases, communication with minors is allowed only in the presence of the second parent.
What liability is provided
As soon as the court decision comes into force, it is considered binding, but sometimes parents specifically interfere with their child’s communication with their ex-spouse. In this case, the enforcement of the provisions of the document is required.For help, you must contact the bailiffs. The legal responsibility for the refusal to execute the judgment in the form of a fine is regulated by the Federal Law "On Enforcement Proceedings". However, based on practice, this measure is considered ineffective in relation to persons who refuse to comply with a court verdict and prevent their child from meeting with the second parent.