By law, both parents have equal rights to ensure the full upbringing of the child. When they are divorced, the child, according to the law, will live with one of the parents, while the second is guaranteed the constitutional right to full upbringing and spending time. As practice shows, freedom of communication with your child is provided, obtaining all the necessary information on training, standard education, and, if necessary, treatment. In order to be able to exercise this right, a statement of claim is provided to determine the order of communication of a particular parent with his child. It is worth noting that this right is enjoyed not only by a member of the former family who now lives separately from the child, but also by those living together when such a need arises for the subsequent determination of meetings with a common child living with the second parent.
What does the court rely on when considering the stated claim?
When considering a claim to establish a procedure for subsequent communication with your child, justice representatives are guided by the following factors:
- The current state of health of the children, taking into account which parent will be more comfortable and safe to be with. If there is a question about children with disabilities, the problem of how best to provide special care is considered, in which case a court decision will be determined if the care is as consistent as possible with the recommendations of medical specialists;
- Possible attachment to each of the two parents, which is expressed in the child’s own desire to remain with the mother or father. As a rule, this practice is most common in other countries; in Russia they also began to pay attention to this factor;
- The established remoteness of residence of former family members, which is expressed in the difficulty of regularly visiting the child and the need to travel (for example, when it comes to parents staying in different localities outside the region or region);
- If the claim states a requirement to leave a child overnight, a representative of the court considers the issue of providing the child with an optimal place to sleep and rest, which is also paid close attention by representatives of justice.
Taking into account all of the above, it is necessary in the sample of the drafted statement of claim to determine the order of communication between both parents and the child to indicate in detail the very possibility of future provision by the parents of conditions in the process of direct communication.
What is stated in the claim
It is imperative that the claim must include information regarding the provision of favorable conditions for the processes of exercising the right to communicate. When proposing a mode of communication, it is certainly worth taking into account your own work routine, the defendant’s similar work routine, and the child’s visits to various special institutions (for example, the same kindergarten, if the need arises, school, developmental clubs and sports sections). It is worth taking into account that the other parent also has every right to spend time with their children, for example, on weekends, available vacation, holidays, in particular, the child’s birthday.
Features of the rules for filing a claim
When, before filing a claim, communication was sporadic, it is quite natural to assume that in a completely unfamiliar environment the child will not feel comfortable and will even find himself in a stressful situation. In this case, it is worth asking the court to provide communication for a limited period of time.
When a verdict is rendered, its existence does not prevent the plaintiff from filing a new claim in the case, which will formulate a requirement to establish a different order of communication when the situation changes. This is true for cases when, at the time of separation, the living conditions are the same, and then begin to change.
As part of the proceedings, the need to conduct a special forensic examination should be stated, the purpose of which is to establish favorable communication between the child and parents living separately. Various options for solving problems regarding the establishment of participation in the upbringing of a child can be made by district or city courts. The claim is filed directly at the defendant’s current place of residence; when drawing up the document, no fee is paid.
Contents of the claim
According to regulatory requirements, the claim contains the following information:
- The header of the document indicates the name of the court, provides complete information regarding the defendant and the plaintiff (full full name and address of actual residence);
- The name of the document itself is indicated with full information regarding the intended purpose. Additionally, it may be indicated that the document is of the nature of eliminating obstacles to communication with children, subsequent participation in upbringing and many other issues;
- The contents of the document must indicate the fact of a previous marriage between the plaintiff and the defendant (the exact date of marriage and full name are indicated). Next, you must also indicate that there are children or one child from this marriage, indicating dates of birth, full name;
- The time of termination of the actual relationship is indicated, after which the established common household is not maintained and the marriage is dissolved (if at the time of preparation of the application the marriage is not dissolved, this is also indicated in the general order). The plaintiff also points out the fact that the child lives with the defendant;
- It is imperative to provide a general description of the health status of the child or children with the condition that they do or do not need special care. According to available data, the child is equally attached to each of the parents;
- Within the scope of the claim under consideration, the plaintiff asks the court to consider the composition of the case and take into account certain circumstances that may affect the emotional and physical state of the child and ensure further full moral development.
It is necessary to attach information that the personal qualities of the plaintiff in everyday life, when performing his official duties at the workplace, are characterized on the positive side. Specific requirements in the legal framework are outlined, in particular, regulated by paragraphs of Article 66 of the IC. In this aspect, the parent is given the full right to communicate with children and spend time with them, to exercise the right of co-parenting. Based on the same article, the parent has the right to take part in choosing the child’s place of education and other circumstances. It is worth pointing out the fact that the defendant is creating an obstacle to this, and provides a specific list of actions aimed at excluding full communication with the child.
Family law pursues the goal: to provide parents with the opportunity to exercise their parental rights, and for children to have the opportunity to fully communicate with their father and mother. Especially after a divorce, which in itself is a serious trauma for both parents and children.
In fact, the opposite often happens: instead of maintaining normal relationships, ex-spouses use children as targets or weapons in the fight against each other. Often the mother prevents communication with the child after a divorce, and the father demonstratively refuses to raise and support the children. And everyone only suffers from this.
In this article we will try to understand the ups and downs of communication between parents and children after a divorce. And determine the procedure for overcoming controversial issues.
Limiting communication between father and child after divorce
Since in most cases, after a divorce, the child remains with the mother, it is the mothers who become opponents of full communication between father and child. The mother begins to abuse her rights and infringe on the rights of the father for a variety of reasons (including because of resentment and the desire to take revenge on her ex-husband). She herself determines the order of meetings between the father and the child, limits the time they communicate, and sometimes does not allow them to see each other at all.
Sometimes the father is not at all embarrassed by this state of affairs. But as a rule, the father defends his legal rights to communicate with the child after a divorce.
How many times can a father see a child after a divorce according to the law?
Mothers often ask whether it is possible to legally prohibit a father from seeing his child.
Question
My husband and I recently divorced due to his alcohol abuse. The children - a 12-year-old son and an 8-year-old daughter - stayed to live with me. The children's father lives not far from us, and I do not limit his communication with the children. I don’t mind him seeing them off and picking them up from school, accompanying them to clubs, spending time in the park and on the playground. But I don’t want the children to stay overnight with their father, either on weekdays or on weekends, because I’m not sure that his housing is suitable for this (size, furniture, cleanliness, as well as unwanted neighbors and guests). My ex-husband says that I set illegal restrictions and insists on longer meetings with the children. Which one of us is right?
Answer
To answer this question, you need to remember the basics of family law (Chapter 12 of the RF IC), according to which children living together are treated equally. In addition, according to Art. 55 of the RF IC, the divorce of parents should not become a reason for the infringement of the child’s rights to communicate with his father and mother. By blocking the father from meeting with the children, the mother violates the law.
However, in some cases, communication between the father and the child may be limited by the court - if this communication is harmful to the physical or psychological development of the child. For example, if the father leads an immoral lifestyle, uses alcohol or drugs, insults his ex-wife, turns the child against the mother, and the like.
If the father’s behavior does not cause any complaints, there is no reason to limit his participation in the child’s life. The father can also go to court if he believes that the mother is violating his legal right to participate in raising joint children.
Unfortunately, the law does not specify the permissible number of hours or days that a father can spend with a child. But this only means that parents need to independently (or with the help of the court) reach an agreement on the procedure for communicating with the child. The schedule and order of meetings will directly depend on circumstances such as the age of the children, the degree of affection, distance, employment and the capabilities of the parents.
Below we will look at how and in what form a schedule for meetings between parents and children is established.
How can parents reach an agreement on how to communicate with their child?
Parents can determine the frequency and duration of meetings between father and child (as well as other features of their communication, depending on the circumstances) in several ways. The law provides for the possibility of drawing up a written agreement or going to court. In practice, an oral agreement between parents is also possible.
Verbal agreement between parents
It’s good if the former spouses maintained human relationships after the divorce. If parents understand the importance of the child's communication with both mother and father, and are equally responsible for his upbringing, they can agree verbally. No documents are required.
For example, according to an oral agreement, the father takes the child to his place every weekend, and the mother does not control the communication process, since she recognizes the ex-husband’s right to raise their common child.
Of course, not every parent can boast of such a conscientious attitude towards their parental responsibilities and such a respectful attitude towards each other.
Written parental agreement
Question. My wife and I divorced, we have a 10-year-old child together. My wife and child live in another city, quite far away - 200 km away. To see my son, I come to see him at least once or twice a month. But my ex-wife is wary of letting the child go with me, so I only have one day at my disposal. Does the wife have the right to dictate the terms of meetings with the child? Is it possible to enter into a written contract with my wife?
If one parent abuses his rights or infringes on the rights of the other parent, if there are disputes between the parents about how often meetings should take place with the child, it would be reasonable to formulate these rights in writing by drawing up a special agreement. In it, among other conditions regarding joint upbringing and parental participation in the life of a son or daughter, it is necessary to provide ...
- Place and time of meetings;
- Duration of meetings (for example, number of hours - on weekdays and weekends, days - during school holidays);
- Types of joint leisure and unacceptable ways of spending time;
- The possibility of the second parent and other relatives being present at parent-child meetings.
There is no need to have the agreement certified by a notary. But if parents want to be sure that the document does not contradict the interests of the child, it can be agreed upon with the guardianship and trusteeship authority.
Determining meetings with a child through the court
It happens that after a divorce, the relationship between the former spouses is so destroyed that it is impossible to peacefully agree on communication with the child. And it happens that a previously concluded written agreement is simply ignored by one of the parents. In this case, the dispute is resolved in court with the obligatory participation of the guardianship and trusteeship authority.
Question. My son divorced his wife. The common child lives with his mother.The ex-wife strictly limits the time spent together between father and child and is personally present during their communication. And judging by how insecure and fearful the child behaves during these rare, short and very uncomfortable meetings, the mother is turning the child against the father. Howachieve normal meetings with your child after a divorce?
Depending on the circumstances, the following claims may be filed:
- on determining the order of communication between a mother or father and a minor child;
- on restricting communication between a father or mother and a child after a divorce (if the circumstances specified in Article 66 of the RF IC occur);
- on the procedure for communication with the child of other relatives (specified in Article 67 of the RF IC).
Disputes between parents about children are resolved exclusively by the district court, and should be filed there.
Communication schedule with your child: time and hours
One of the attachments to the statement of claim may be communication schedule with your child. This document contains an approximate or exact schedule of meetings between parents and the child, their time and duration, place and method, as well as other forms of communication (telephone calls, correspondence).
Parents will have to draw up a schedule for communicating with their child on their own, depending on the circumstances and characteristics of family relationships. If serious difficulties arise, you should seek help from a lawyer.
It must be said right away that the law does not provide any restrictions on the amount of time a father or mother spends with a child. Restrictions are established in exceptional cases, for example, if the mother is categorically against it, and the father has to seek meetings with the child in court, or if the mother has good reasons to limit the father’s time together with his daughter or son.
It is important for both mother and father, if they are not deprived of parental rights, to fulfill the role provided for by law in the child’s life, maintain relationships with him, educate him, and take part in his development and formation.
At the same time, it must be taken into account that the father’s possibilities are not limitless, taking into account work, workload with other matters, distance, and sometimes a new marital status. On the opposite side there may also be reasonable restrictions. Therefore, the schedule of meetings between the parent and the child is formed taking into account all significant circumstances, such as the parents’ employment, separation, as well as the age of the child, his capabilities and wishes, and the degree of attachment between the parent and the child.
For example, the regularity and duration of meetings between a father and a one-year-old baby may differ from meetings between a father and a teenager. In the first case, half an hour a day may be enough, in the second, you can arrange for the child to visit his father for the entire weekend. The ways you spend time together will also be different. In the first case, meetings can take place in the presence and accompaniment of a nursing mother, in the second, the father can be given complete freedom to communicate with his daughter or son.
It is advisable to include in the schedule the possibility of spontaneous, unplanned meetings. After all, even the most organized mother may suddenly need help with her child, or the busiest father may have free time to meet with his child.
Judicial practice in cases of this category is based on the fact that the order of meetings between parents and children should be as strict as possible. specific and clear. Uncertainty, the lack of an exact schedule of days and hours makes the court decision impossible, allows for the possibility of manipulation and mutual claims, puts parents and children in a dependent position, and prevents planning and compliance with the child’s full-fledged regime.
Thus, the communication schedule with the child must contain specific schedule:
- days of the week and hours (on weekdays and weekends, holidays);
- time, place of meetings;
- duration of meetings;
- ways to spend time;
- the possibility of presence and accompaniment (for example, mother, maternal or paternal relatives - grandparents, siblings and half-brothers);
- procedure for joint school holidays and parental leave.
In this case, the individual circumstances listed above must be taken into account.
If one of the parents (mother or father) violates the established schedule - ignores or interferes with meetings at the appointed time, this may be qualified as failure to comply with a court decision, for which a fine of 1000 to 2500 rubles is provided. (according to Articles 17.14 - 17.15 of the Code of Administrative Offenses of the Russian Federation).
Case consideration and judicial practice
Question. My husband divorced me because of an affair with another woman. After the divorce he married her. In our marriage a child was born, he is now 3 years old. The ex-husband takes the initiative to meet with him, but wants to see the child at any time convenient for him, and also, at his own request, take him to his place. My participation in these meetings is categorically unacceptable. He says he will achieve this through the courts. Can the court accommodate the husband?
Having considered the plaintiff's application, the court examines the case materials. The following circumstances are taken into account:
- The age of the child, the level of his physical and psychological development;
- The moral qualities of the parent, the order of meetings with whom is determined by the court;
- The schedule of communication with the child proposed by the plaintiff - the time and regularity of meetings, the conditions and method of holding meetings.
To make a fair decision, the court relies on the following evidence:
- recommendations of the guardianship authority;
- parental characteristics;
- witness statements, recordings of conversations, letters.
If there are no grounds for refusing to satisfy the claim, the court, by its decision, approves the order of communication between the father and the child in the form requested by the plaintiff (taking into account the changes and additions made to the claims during the judicial review process).
If the court finds that satisfying the claim will violate the child’s interests, that meetings with parents will negatively affect the child’s physical and psychological development (for example, affect his well-being, behavior, and success at school), the plaintiff’s claims will be rejected. The court may also limit visits between the father and the child (for example, only in the presence of the mother).
Liability for violating the order of communication with a child established by the court
If a court decision to determine meetings with a child has entered into legal force, but one of the parents still acts in his own way, preventing the child from having a normal relationship with the other parent, he can be held accountable. There is a fine for such a violation.
For systematic violation of the order of meetings determined through the court, one of the parents has the right to demand a change in the child’s place of residence (for example, if the mother categorically denies the father the opportunity to see and raise their common child, the father can ensure that the child lives with him).
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Divorce is a rather serious step that spouses decide to take for various reasons. Unfortunately, divorce is a fairly common occurrence these days, and children are often involved. During the trial, the court has to make decisions not only about who the child will remain with after the divorce, impose alimony penalties on one of the spouses and resolve property issues. But sometimes the court has to legalize the periods when a child can see a parent with whom he does not live.
Of course, this decision should belong first of all to the parent who, as a result of the divorce, had custody of the child, but there are often cases when, due to strained relationships and grievances, former spouses are unable to come to an adequate decision. If the parents cannot reach an agreement on this issue, then the court must make a decision. We will tell you in our article how to draw up a statement of claim to determine the order of communication with a child.
Peaceful ways
Parents in a state of divorce must understand that communication between each of them with their child is a necessary condition for becoming a healthy and reasonable representative of society. The consequences of such prohibitions are unpredictable, and they can have an extremely detrimental effect on the child’s psyche.
The law encourages agreement on the duration and procedure of visits as part of a written agreement between parents. It does not require notarization if it does not raise the issue of property alimentary penalties. Such an agreement may provide for all the specifics of the child’s contact with the parent during visits, and may also include clauses regulating the parents’ behavior in emergency situations.
Info
Of course, to draw up such an agreement, it is necessary to reach an agreement. If the spouses cannot reach an agreement, then it will not be possible to resolve such a conflict without going to court. The court can establish an order, also in the case where an agreement is drawn up, but is not respected.
How to apply?
A parent has the right to demand a definition of the procedure for communicating with a child as part of a divorce claim, providing for this aspect of the relationship in his requirements, indicating the desired mechanism and timing of visits. Then the court, as part of the divorce proceedings, makes a decision regarding this issue, based on the available materials.
It is not uncommon for a plaintiff, in a claim to determine the order of communication with a child, to appeal to the court after a divorce, due to the fact that the ex-spouse interferes with visits. In addition to the child’s parent, close relatives who also want to spend time with the baby can make a similar application.
Attention
The statement of claim must be filed at the place of residence of the child and the defendant. In addition, this statement must be supported by an evidentiary base, which may include witness statements, recordings of telephone conversations and other facts that can confirm the need for judicial intervention.
What should you pay attention to?
During the trial, not only the evidence provided by the plaintiff as part of the application will be considered. The court will also require information about the plaintiff’s property status and living conditions. It is possible to carry out all kinds of checks and examinations within the framework of the case.
If the child’s guardian’s argument for interfering with communication is inappropriate behavior on the part of the plaintiff, then as part of the process the defendant will have to confirm such statements. If the arguments turn out to be compelling, the court may not only leave the claim to determine the order of communication with the child without movement, but also recommend that the defendant initiate a procedure for depriving the plaintiff of parental rights. The main arguments here could be certificates from neuropsychiatric and drug treatment clinics where the plaintiff is registered. Counter-arguments that the defendant can bring in defense of his position can also be testimony and other documents that can cast doubt on the adequacy, consistency and good intentions of the plaintiff.
Therefore, preparing strong arguments for a given claim is the most important aspect. The plaintiff must convince the court that he can provide the child with favorable conditions, and that communication will not cause harm or contradict the interests of the minor. The court will be guided primarily by the interests of the child, his age, state of health and degree of attachment to each of the parents.
How to apply?
Statement of claim to determine the order of communication with the child compiled according to the following structure:
- A cap document:
- Name and address of the court;
- Plaintiff's details: full name, address, contact details;
- Defendant's details: full name, address, contact details;
- Third person. You can involve the guardianship authorities in the claim in order to achieve the desired result, and indicate their involvement here;
- Heading: “Statement of claim to determine the order of communication with children”;
- In body The document should include the following facts:
- Children's data;
- Provide information about the defendant and the relationship that exists between the plaintiff and the defendant, referring to the registry office documents;
- Indicate the presence of obstacles in communicating with children, citing evidence;
- Make attempts at pre-trial settlement citing evidence;
- Indicate the grounds for the claim. In this case, there are links to articles of the Family Code of the Russian Federation and some articles of the Civil Code of the Russian Federation. It is worth familiarizing yourself with the text of these legislative documents when preparing a claim.
- Put forward a petition with a clearly defined order of meetings with the child, which will suit the plaintiff;
- The attached documents must be listed and presented to the court along with the statement of claim:
- Copies of the application according to the number of parties involved in the case;
- Copies of children's birth certificates;
- Copies of marriage and divorce certificates;
- Certificates from the place of work, about income, as well as from the housing and communal services at the plaintiff’s place of residence;
- All possible evidence in the case;
- Date of application;
- Applicant's signature with transcript;
When submitting an application to determine the order of communication with your child, you should not hope that all decisions will be made exactly as you want. To protect your interests, it is best to contact a competent family law lawyer who has repeatedly encountered similar cases in practice. Only with full support of the case by an experienced lawyer can you calmly wait for the conflict to be resolved and hope that the court will be on your side.
Sample
Sample
IN _____________________________
(name of court)
Plaintiff: __________________________
(full name, address)
Respondent: ___________________________
(full name, address)
Guardianship and trusteeship authorities: _______
(full name, address)
Statement of claim to remove obstacles to communication with the child, to establish a procedure for participation in the child’s upbringing
“___”_________ ____ a marriage was registered between me and the defendant _________ (full full name). From this marriage there is a common minor child _________ (full name, date of birth).
Since ____, the marriage relationship between me and the defendant has actually been terminated, there is no common household. The marriage is dissolved (not dissolved). The child lives with the defendant. The child's health status is _________. He is attached to each of his parents. When considering the case, I ask you to take into account _________ (indicate circumstances that could have an impact on the physical and mental health of the child, on his moral development).
My personal qualities at home and at work are characterized positively.
The provisions of Article 66 of the Family Code of the Russian Federation give me, as a parent living separately from the child, the right to communicate with him, participate in his upbringing and resolve issues regarding the child’s education.
The defendant, taking advantage of the fact that the child has been living with her since ____ to the present, prevents us from meeting with the child and participating in his upbringing. Thus, the defendant violates my rights as the child’s father, as well as the rights of the child’s grandparents, brothers, sisters and other relatives.
Based on the above, guided by Articles 61, 63, 67 of the Family Code of the Russian Federation, Articles 131-132 of the Civil Procedure Code of the Russian Federation,
Ask:
- Oblige _________ (full name of the defendant) not to interfere with my communication with the minor _________ (full name, date of birth).
2. Determine the following order of communication between the father and the child:
- oblige the defendant in this case to provide the plaintiff with the opportunity to meet with the child ___ days a week, including ___ days on weekdays _________ (indicate which) and on weekends _________ (indicate which);
- oblige the defendant to provide the plaintiff with the opportunity to spend vacation with the child for at least 2 weeks a year, for which to draw up all the necessary documents;
- oblige the defendant to resolve issues related to the education, upbringing of the child and other similar issues only together with the plaintiff.
List of documents attached to the application(copies according to the number of persons participating in the case):
- Copy of the statement of claim
- Copy of marriage certificate
- Copy of the child's birth certificate
- Characteristics from the place of work (residence) of the plaintiff
- Information about the plaintiff's work schedule
Date of application “___”_____________ Signature of the plaintiff _______
Criminal lawyer. Experience in this direction since 2006.
The situation when a family breaks up is quite common in Russia. However, if a child remains to live with his mother, this does not mean that the father does not have the right to communicate with him. No matter who the baby stays with, the second parent has every right not only to fully communicate with him, but also to participate in the process of his education and upbringing. At the same time, the parent with whom the children live has no right to interfere with such contact.
When the order of communication is prescribed, the age of the children, their attachment to both parents, health status and other conditions and circumstances that are significant and can influence the physical and mental state of the child are taken into account. Thus, it plays a role how long he has not communicated with the applicant, how far the plaintiff lives from the child, the applicant’s living conditions, etc.
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The claim to the court for communication with the child is submitted by the applicant to the district court at the place of residence of the former spouse. Such a claim is not subject to state duty. This is due to the fact that such disputes belong to the category of cases about the protection of children’s rights, and therefore cannot be subject to additional payments and fees.
Rights of the parties to a meeting
The issue of communication between children and their parents is regulated by the norms of the Russian Family Code (FC). It states that parents have the same scope of rights and responsibilities regarding their child, while marital status does not play any role. Thus, according to Article 66 of the Family Code, divorce does not change the situation in any way. A parent can only turn into an ex if they are deprived of parental rights.
The legislation defines two possibilities to build a relationship between a child and a parent who lives separately:
- Mom and dad manage to reach a voluntary agreement, which can be concluded in the form of a contract. Such a contract is drawn up in two copies, both parties sign it. If the document specifies the amount and frequency of alimony payments, it must be notarized.
- The order of communication can be determined in court. This measure is compulsory; it is resorted to if the mother, with whom the children often remain after a divorce, forbids the father to see them.
In addition to parents, the law determines the circle of persons who can claim to communicate with the child due to their having such a right.
Articles 14, 55, 67 of the Family Code assign it to close relatives, these include:
- grandmother grandfather;
- half brother/sister;
- brother/sister of one of the parents.
The mother does not have the right to prohibit the child from communicating with close relatives, and if it is not possible to reach an amicable agreement in this matter, the parents also have the right to solve this problem in court
Main nuances of cases
The most important rule to remember is that parents have the same rights and responsibilities towards their children.
Even if the court has determined which parent the child lives with, he has the right to communicate with the second parent who lives separately. And this right should not be limited, that is, one of the former spouses with whom the child lives should not interfere with this.
The procedure for communication with children can be determined provided that the ex-husband and wife live separately. Article 66 of the Russian Family Code establishes the right to communicate with the son or daughter of a parent living separately, participation in the educational process and issues related to obtaining an education.
The parent who lives with the children should not interfere with such communication. The opposite is possible if it harms the health and moral development of children.
When considering the issue of communication between parents and children, a court decision may establish:
- place;
- the time when communication occurs;
- order of communication.
If the child is already over 10 years, then Article 57 of the Family Code says that when considering the issue of communication with parents, his opinion should be taken into account.
When the procedure for communication is determined, the guardianship and trusteeship authority participates in the procedure, and the following factors are taken into account:
- baby's age;
- health status;
- level of attachment to mom and dad;
- what mode both parents work in;
- do they have decent conditions for the development of children;
- how far is the place of residence of the separated parent from the place of residence of the child;
- if we are talking about a small child, what is his usual daily routine;
- how long the child was deprived of communication with the parent who lives separately, and other circumstances.
Determining the order
When spouses separate, the question inevitably arises regarding the future fate of their children. This applies not only to the alimony that will be paid for him, but also to the determination of his place of residence. The ex-husband and wife will have to decide how communication will take place, when and how the child will conduct it with each of them.
Parents have the right to agree on the procedure among themselves and put it in writing. Family law allows the conclusion of such an agreement. The ex-husband and wife can record in it all the conditions under which communication with the child will take place.
For example, stipulate the days when communication with the child of a parent who does not live with him will take place, as well as the hours allotted for this. Separately, you can specify problematic situations and the behavior of parents when they arise, for example, when a child gets sick or something happens to him.
When a settlement agreement is signed between former spouses, the participation of a notary is not required. But there are also exceptions, these include agreements that specify the amount of alimony. In this case, notarization is mandatory.
If the parents were unable to agree peacefully, in this case the order of their communication with the children will be determined by the judicial authority. Court intervention is also possible if the agreement reached is violated by the parties.
If the spouses understand that they will not be able to reach an agreement on their own, they can mention the need to determine the order of communication with joint children even when filing a divorce claim. When choosing this way to solve the problem, the request to determine the procedure should be recorded in the application as a separate requirement.
An application to the court for communication with a child can be submitted even after a divorce has occurred. Most often this happens when one of the spouses creates various obstacles to the meetings of the second parent with the child. At the same time, they do not take into account the fact that the rights of the child are violated.
Not only the parent can put forward demands to resume communication with the baby, because other close relatives are legally vested with a similar right: grandparents, brothers/sisters
If it comes to filing a claim, the applicant will have to decide on the jurisdiction of the case. According to current legislation, the claim must be filed with the court at the place of residence of the defendant, who is the parent who prevents the second parent from meeting the child.
The claim must contain evidence that one of the spouses is violating the rights of the other to communicate with their joint children. In this case, it is necessary to use witness testimony, documentary and other evidence. The court also has the right to demand from spouses documents about their property or housing status in order to determine the optimal procedure for communication with children.
The court may allow communication not only on weekdays, but also on holidays, weekends, and school holidays. The procedure established by the court can be revised over time, however, there must be objective reasons for this, for example, the child’s daily routine has changed.
This most often happens when he went to school or began attending various clubs. In this case, the parent living separately may request to pick up the child after classes.
Contents and filing of an application to court for communication with a child
In their own disputes and conflicts, parents completely forget that when resolving the issue of communication with a child, it is not their interests that are primarily affected, but the interests of the child himself. In Russia, children are under special protection. The state believes that they have the right to visit their parents, grandparents and other relatives.
If this right of the child is violated, a claim may be filed with a judicial authority:
- A parent who is deprived of communication. Most often, this is a father who suffers from the actions of his ex-wife, with whom the child lives.
- A parent who lives with the child. At the same time, he makes a cunning move: by filing a lawsuit, he tries to establish his own rules on which the children will communicate with the other parent. In this way, it is possible to minimize the number of meetings between the child and the parent living separately.
- other close relatives.
The statement of claim must contain the following information:
- The name of the court where the claim is filed. Such cases are considered by district courts, as well as other judicial authorities that are equivalent to them.
- The document must contain information about the applicant, respondent, child and guardianship authority. Representatives of this body must appear in court, since it is he who is the official representative of the authorities and acts as a defender of the interests of children. The participation of the baby himself is important in the process. His opinion cannot be ignored if he has achieved 10 year old age.
- The statement must set out the factual circumstances of the case.
- Reference is made to the legislative norms within which the dispute is resolved.
The application must be accompanied by papers that will serve as evidence in the case demonstrating that the procedure for communication proposed by the plaintiff is reasonable. Since such a claim is intended to protect the rights of the child, no state fee is paid.
The start of a trial does not mean that the spouses can no longer resolve the issue peacefully. During the proceedings in court, they can sign a settlement agreement, as a result of which the court issues an appropriate ruling. This document has the force of a decision, but comes into force through 15 days, not in a month.
Resolution of the issue in court
The judge, when deciding issues related to the upbringing of children, primarily proceeds from the following circumstances:
- what is the baby’s age;
- is he healthy?
- is the attachment to the two parents the same;
- what daily routine does he follow?
- how far does the plaintiff live from the child;
- whether there is a place in the plaintiff’s house for the child to rest and play.
When preparing an application, you can use a sample claim to remove obstacles in communicating with children. It is important in the document to indicate all the parent’s capabilities to ensure favorable conditions for the child. To choose the optimal mode of communication, you should indicate on what schedule the child attends school, clubs and sections.
When people decide to separate, questions inevitably arise regarding the future fate of their children. This includes future place of residence and alimony. Make the task easier statement on the procedure for communicating with the child, a sample of which can be downloaded from the website.
In addition, the spouses will have to establish how they will spend time with him after the end of the relationship. If agreement is not reached, then it is necessary to file a claim with the court to determine the order of communication with the child.
Determining the time and place of meetings with children is often a judicial procedure, where the court will determine how they will communicate with the father with whom they do not live, after the parents' divorce and separation.
In this article:
How to determine the order of communication between father and child
Parents have the right to agree on the order and duration of meetings with children in writing. Family law allows for the drawing up of such an agreement (Article 66 of the RF IC).
Moreover, its presence is even welcomed by the courts. In it, spouses have the right to specify in detail all the conditions for meetings and visits.
For example, former family members have the right to stipulate the days and hours of communication. In addition, you can separately resolve issues in case of emergency situations (illness, accident).
Signing an agreement between parents does not require the presence of a notary.
The exception is situations when the document contains clauses on the payment procedure. Then the contract requires mandatory notarization.
In any case, to determine the key terms of the agreement, we recommend that you obtain free legal advice from our family law specialists.
Determining the procedure for communicating with a child through the court
If the spouses have not entered into an agreement among themselves regarding participation in raising children, then determining the order of communication (meetings) with the child is the prerogative of the court. He can also intervene when the agreement reached by one of the parties is violated.
In the event of a divorce, the issue of how often the father will see his children can be resolved immediately. This information must be contained, which, in this case, is submitted to the district court .
The procedure and duration of meetings between the father and the child must be set out in the statement of claim in the form of a separate demand. And then the court will set a point-by-point schedule of meetings with the parent living separately from him.
It can also be filed after a divorce. This often happens when one of the ex-spouses creates various obstacles to meeting children. In fact, there will also be a violation of their rights.
It is not only parents who can insist on defining the terms of communication with their children. Other close relatives (grandparents, brothers or sisters) have the same right.
State duty amount
The state fee for a claim to determine the order of communication with a child is not paid. This is explained in the “Review of the practice of court resolution of disputes related to the upbringing of children.”
Quote: “the requirement to pay state duty in disputes related to raising children is illegal, since they relate to cases of protecting the rights of the child and are not subject to duty, which follows from the provisions of clause 15, part 1, art. 333.36 Tax Code of the Russian Federation, clause 2 of Art. 23 of the Federal Law of July 24, 1998 N 124-FZ “On the basic guarantees of the rights of the child in the Russian Federation.”
Jurisdiction and jurisdiction of the dispute
Which court should I file a claim to determine the order of communication with my child?
The rules on the jurisdiction of the Code of Civil Procedure of the Russian Federation apply to a claim to establish the time of meetings with a child. They are as follows.
According to current legislation, a statement of claim can be filed in court at the place of residence of the defendant (i.e., the parent who does not allow him to see the child). Art. speaks directly about this. 28 of the Civil Procedure Code of the Russian Federation.
The claim is sent to the district court at the place of his residence. As a rule, this is the court at the place of registration of the defendant.
Filing an application at the plaintiff’s place of residence is in this case impossible and not provided for by law.
Subject of proof in cases of determining the order of communication with a child
The subject of evidence means a list of circumstances that the court must establish when considering a case to determine the order of communication with a child.
From the cited articles. Art. 55 and 66 of the RF IC it follows that the court, when resolving a dispute, proceeds from the balance of interests of the parents and the minor child.
The guideline for law enforcement practice is set by clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 N 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children.”
The resolution states that when determining the order of communication between a parent and a child, the following are taken into account::
- child's age;
- his state of health;
- attachment to each parent;
- other circumstances that can have an impact on the physical and mental health of the child, on his moral development.
In exceptional cases, when a child’s communication with a parent living separately may cause harm to him, the court, based on paragraph 1 of Art. 65 of the RF IC, which does not allow the exercise of parental rights to the detriment of the physical and mental health of children and their moral development, the applicant has the right to refuse to satisfy the claim to determine the procedure for his participation in the upbringing of the child, setting out the reasons for the decision made.
The parent who asks to determine the order of the child’s meetings with him has the responsibility to prove that communication with the father does not contradict the interests of the minor.
At the same time, he has everything necessary to create favorable conditions during his stay with him.
Circumstances to be clarified
The list of circumstances that may be the subject of discussion in court is given according to the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation by courts in resolving disputes related to the upbringing of children” and the Review of the practice of resolving disputes related to the upbringing of children by courts.
Taking into account the specific facts of the case, their list can be expanded. So, the court takes into account the following circumstances that are important for resolving the dispute.
Age and health status of the child
First of all, the court will examine the question of whether his health condition interferes with communication with the other parent. In this case, age is also of great importance.
For example, it is extremely unlikely that the court will recognize the right of a father to take a breastfed child with him on weekends. It is most likely that they will see each other at the mother’s place of residence and only in her presence.
At an older age, the chances of taking children on weekends increase. In principle, after the baby switches to general nutrition, it is possible to take him away for the weekend and the court often satisfies such requirements.
The older the age, the greater the likelihood of establishing a communication order that involves the child meeting and staying with the father, excluding the presence of the other parent.
Availability of conditions for education and development
The availability of conditions for upbringing and development is an important factor if the child will spend the night not at home.
For this there must be:
- living space;
- sleeping area;
- toys;
- books;
- Food.
A separate room and other living conditions that promote the psychological and physical development of the minor’s health are welcome.
Schoolchild's daily routine
If a child attends an educational institution, and a parent asks the court to allow him to stay overnight on weekdays, then there must be conditions that allow him to go to school without harming his interests.
Even if these conditions are present, it is not a fact that the court will agree that the student’s stay at his father’s house on weekdays is in his interests.
Distance between the plaintiff’s actual residence and the child’s place of residence
It is not uncommon for a parent to live hundreds of kilometers away. The court cannot ignore this circumstance.
It is unlikely that long weekly trips will correspond to the interests of the child. In this situation, communication will most likely have to be limited to vacations.
Length of time during which the child had no contact with parents
What matters here is the degree of attachment to the father. If the son or daughter has not previously communicated with him, then leaving him alone is often not in their interests and can negatively affect their psyche.
Initially, meetings are permissible in the presence of the mother, and as adaptation progresses, communication in private will also be possible.
Psychological and psychiatric examination
A psychological and psychiatric examination may be prescribed if it is necessary to determine the relationship between the child and parents and the degree of attachment to each of them.
For example, the mother with whom the child lives may claim that communication with the father is contrary to his interests, because he is afraid of him.
To confirm or refute this circumstance, an examination may be appointed.
What can you count on
If a child has self-care skills, then a separate father can usually count on the right to take him home for the weekend every second week of the month.
On the remaining days of the week, see each other on weekdays, spend vacations with him once or twice a year, communicate by phone and through other means of communication.
Regarding disputes about determining the order of communication with a child, everything is individual. On average, if the schedule does not contradict the interests of the children, you can count on its approval by the court.
What is necessary for the court to determine the most favorable order of communication with the child
The father must have a house or apartment in which the child will stay during the period of joint meetings.
Residential premises can be owned on any basis:
- own;
- commercial or social hiring;
- free use;
- use as a member of the owner's family.
Availability of conditions for the child’s stay, namely:
- sleeping area;
- toys;
- books;
- Food.
Specific conditions are determined by the age of the child.
Evidence is being prepared to confirm that communication with the father does not contradict the interests of the minor and does not pose a threat to him. Usually a positive reference from the place of work and residence is enough.
The defendant may attach to the case documents confirming negative characteristics:
- criminal record certificate;
- documents on bringing to administrative responsibility;
- witnesses confirming the facts of child abuse.
Therefore, you need to be prepared for such developments. It is better to discuss countermeasures with a lawyer. Certificates confirming your regular income will help with this.
On the one hand, the fact of working or engaging in entrepreneurial activity characterizes the parent positively. On the other hand, having an income is necessary so that the parent can support the child while he is with him.
Features of preparing and filing a claim to determine the order of communication with a child
The statement of claim must set out evidence of violation by the second spouse of the rights to communicate with the child. This is where witness statements and other corroboration may come in handy.
In addition, the court has the right to request documents from the parties to the dispute to determine the order of communication with the child. This may be information about the plaintiff’s property and housing status, work schedule.
The court can establish the order of meetings between the father and the child not only on ordinary days, but also on holidays and school holidays.
It should be remembered that the schedule of meetings with the child established by the court may subsequently be revised. This can happen due to an objective change in children’s daily routine.
For example, a child grew up and went to school from kindergarten. In this case, you can ask the court to allow you to take the child to your place on Friday for the weekend.
Example of a claim to determine the order of communication and meetings with a child
Dorogomilovskydistrict court
121165, Moscow, st. Studencheskaya, 36
Plaintiff: Alexey Anatolyevich Fogel
Moscow st. Workers 72 sq. 133
Defendant: Vogel Ekaterina Vladimirovna
Moscow, st. Kalinina 13-a apt. 50
Third party: Department of Social Protection of the Population of the Dorogomilovo District of the Western Administrative District of Moscow
121165, Moscow, st. Studencheskaya, 31
Statement of claim to determine the order of communication with a child
On August 10, 1996 (Marriage Certificate I-IV No. 312882, issued by the Civil Registry Office of the Dorogomilovo Administration of the Western Administrative District of Moscow on August 10, 1996), I married the defendant Vogel Ekaterina Vladimirovna and lived with her until January 2017.
Marital relations between us have been terminated since January 2017, we do not maintain a common household, we live separately. On August 13, 2017, by the decision of the magistrate of court district No. 7 of the Dorogomilovsky district of Moscow, the marriage was dissolved.
From this marriage I have a son, Fogel Andrey Alekseevich, born on May 2, 2009. He currently lives with his mother.
I repeatedly tried to agree with the defendant on the time, place and duration of communication with the child, but it was all in vain. Ultimately, the negotiations led to conflicts.
Today, despite the fact that we practically live next to each other, I do not have the opportunity to fully participate in raising my son.
Since, despite repeated attempts, to settle with Fogel E.V. Question about the procedure for communicating with my child Vogel A.A., she always answered me with a refusal, while constantly making trouble and forbidding me to communicate with my son.
When I call on the phone, she also refuses to talk to my child and scolds him for communicating with me.
In accordance with Art. 61 of the RF IC, parents have equal rights and responsibilities in relation to their children. By virtue of Art. 63 of the RF IC, parents have the right and obligation to raise their children.
According to Art. 66 of the RF IC, a parent living separately from a child has the right to communicate with him, participate in his upbringing and resolve issues regarding his education.
The parent with whom the child lives should not prevent him from seeing his father, if these meetings do not harm his physical and mental health, as well as moral development.
I consider the Defendant’s actions to be illegal and contrary to the norms of family law, since by her actions she deprives me, as a father, of the right to full communication with the child and his upbringing.
Based on the above, in accordance with paragraph 2 of Art. 66 IC RF,
I ask the court:
1) Establish the following procedure for communicating with the child Fogel Andrey Alekseevich born on May 2, 2009:
– meet every second Saturday and Sunday of the month from 10.00 am on Saturday to 6.00 pm on Sunday at the location of the father, A.A. Vogel without the presence of the defendant;
– meet with father, Vogel A.A. weekly, every Wednesday from 18.30 to 21.30.
– meet from 10:00 a.m. on November 7 to 8:00 p.m. on November 11 annually at the father’s location, Vogel A.A. without the presence of the defendant;
– meet from 10.00 o’clock on December 4 to 20.00 o’clock on December 9 annually at the father’s location, Fogel A.A. without the presence of the defendant;
– meet from 10.00 o’clock on March 25 to 20.00 o’clock on March 30 annually at the father’s location, Vogel A.A. without the presence of the defendant;
– meet from 10.00 o’clock on June 15 to 20.00 o’clock on August 30 annually at the father’s location, Vogel A.A. without the presence of the defendant.
2) Oblige the defendant Fogel E.V. Do not create obstacles for me, Vogel A.A., in communicating with the child.
Application:
1) Copies of the statement of claim (according to the number of persons participating in the case).
