The Child after the divorce.
Going to file for divorce and want a minor child is left to live with You, because they have the best material and housing conditions? Go towards the court? It is possible.
Family code of the Russian Federation establishes the right of the child to live and grow up in a family, to know their parents and to be cared for by parents and shared with them accommodation, but often in our lives, the opposite is true, and parents have to divorce.
According to article 61 of the Family code “ Parents have equal rights and bear equal responsibilities towards their children (parental right) ”. If the parents cannot come to an agreement about the exercise of parental rights, the dispute is settled by the court, upon the request of one or both parents, with the participation of body of guardianship and guardianship. To disputes connected with education of children: the debate about the place of residence of the child when the parents live apart (paragraph 3 of article 65 of the RF IC); on the implementation of the parental rights of the parent living separately from the child (paragraph 2 of article 66 of the family code); the elimination of obstacles to communicating with a child of his close relatives ( section 3 of article 67 of the family code); the return of the child’s parents held not on the basis of law or judicial decisions (clause 1, article 68 of the family code); the return of the guardians of the ward from any persons, restraining the child without a legal basis (paragraph 2 of article 150 of the RF IC); the return of adoptive parent of the child held by other persons on the basis of law or a court decision (section 3 of article 153 of the family code); termination of parental rights (clause 1, article 70 of the family code); for the restoration of parental rights (item 2 of article 72 of the RF IC); on restriction of parental rights (clause 1, article 73 of the family code); on the abolition of restriction of parental rights (article 76 of the RF IC), and others.
The established practice is usually the child after the divorce of the parents will remain with their mother, but the father has all the rights on the child. Therefore, in the preparation of cases in this category for trial judge to properly identify the facts that are relevant to resolve the dispute and must be proved by the parties, with special attention to those that characterize the personal qualities of the parents or other persons caring for a child as well as the relations of these persons with the child. Such cases are assigned for trial in court only after receipt of the tutorship and guardianship drawn up and approved in the prescribed manner the acts of the survey of living conditions of persons applying for the child’s upbringing after divorce. The court shall take into account the age of the child’s attachment to each parent, brothers, sisters and other family members, moral and other personal qualities of the parents, the relationship existing between each parent and child, the possibility of creating a child after divorce conditions for education and development (with allowance for activities and mode of operation of the parents, their financial and family situation, having in mind, that in itself is an advantage in material and living conditions of one of the parents is not an unconditional basis to meet the requirements of that parent) and other circumstances characterising the situation that has developed in the place of residence of each parent.
In such cases, the court takes into account the actual ability of the parents to ensure proper upbringing of the child after the divorce, the nature of the current relationship of the parent with the child, the attachment of the child to one parent. Upon consideration of all the circumstances of the dispute, with whom of the parents remain the child after the divorce, we must not forget also the opinion of the child.
Article 12 of the UN Convention on the rights of the child and article 57 establishes the right of children freely to Express their opinion. Pinning this right emphasizes that in a family where the child is a personality to be reckoned with, particularly when dealing with questions such as “the child after divorce” that directly affect their interests.
The law does not indicate the minimum age at which a child has this right. In the UN Convention on the rights of the child stipulates that such a right is granted to every child capable of forming their own views. Therefore, once the child reaches a sufficient degree of development in order to do that, he has the right to Express their opinion in the decision in the family of any matter affecting his interests, in particular, when choosing an educational institution, learning, etc. Since that time, he has the right to be heard in any judicial and administrative proceedings directly concerning, affecting its interests.
Depending on the age of the child his opinion given the different legal value. The UN Convention on the rights of the child prescribes “to pay attention to the views of the child in accordance with his age and maturity”. According to the article 57 of the UK into account the views of the child, under ten years of age, required. Before this age the child is able to Express their views, too, must be heard, but because of his childhood at disagreement with his opinion of parents, guardians and officials shall not have to justify their disagreement. However, this does not mean that the individuals are always required to agree with the opinion of the child who has reached ten years. The child and at this age still lacks maturity. He often, though, and is able to formulate an opinion, but not yet possesses the ability to realize their own interests (for example, if there is a tendency of the child in determining his place of residence to live with a parent is an alcoholic, a drug addict or with a parent that meets all of his foolish whims, etc.).
Consideration of the views of the child assumes that it is, firstly, will be heard, and secondly, in case of disagreement with the views of the child entity, the crucial issues affecting its interests, are obliged to justify the reasons why they felt it necessary not to follow the wishes of the child after divorce.
Whatever decision is not adopted by the court, of the parents to prefer which one to assign to the direct caregiver of a child after divorce, the other parent does not lose their rights and responsibilities. He becomes the owner of the right to communicate with the child, to participate in his upbringing, education and life.
The article “the Child after the divorce”