Determining the child’s place of residence in a lawsuit

When the parents divorce, the child collapses his familiar and often the only world that he knew. Of course, the question of who he will stay with is very important, but it is much more important to preserve the presence of both father and mother in his life. But it turns out this is not always the case.

By mutual agreement

Sometimes friendships between former spouses can be maintained even after a divorce. In this case, children can adapt to a new life without the constant presence of one of the parents much faster. Determining the child’s place of residence is a procedure that takes into account all the nuances of the organization of life in the place of the new habitat of the father or mother. In most cases, divorce implies the inevitable departure of former spouses. Of course, the most acceptable option is when the child remains to live in the familiar environment, apartment or house where the family previously lived. If the interests of the child are in the parents' priority, then they will plan their future based on these considerations.

Having agreed among themselves, they must draw up their agreement in such a way that subsequently, if the relationship deteriorates or new circumstances arise, one cannot accuse the other of violating parental duties. It is not necessary to go to a court or a notary public to endorse an agreement. It is enough to fix all the points on paper, mutually sign, copy and copy to yourself. The document is called: "Agreement on determining the place of residence of the child." It will come in handy during the divorce proceedings. The agreement will speed up the procedure, make it less painful, since if a couple has joint children, divorce is possible only in court.

There are some exceptions to this rule. The intervention of a justice of the peace will not be necessary if one of the spouses is deprived of parental rights. In this case, you can apply for a divorce at the registry office at the place of registration. Here it should also be obtained if the father or mother is recognized as missing or dead. The third exception is the second parent convicted and sentenced to imprisonment for a term of more than three years. The scheme of divorce and the place of residence of the child in this case is the same: it is drawn up through the registry office, and minor children are left with the parent who is the initiator of the process.

The child is the subject of manipulation

In most cases, all differences between spouses can only be resolved in court. Along with the statement of claim for divorce, an application for determining the child’s place of residence is also submitted. It is important to understand that each process is individual in nature, since the material, and housing, and emotional living conditions of the couple are not similar to each other. And after the divorce, they will change even more. There are frequent cases when, when the family breaks up, parents are more perplexed by the division of common property and acquired savings, rather than by the mental state of children. The latter can even be the subject of manipulation. For example, in the struggle for an apartment and the appointment of alimony. Naturally, those who leave the family should pay them. As for the living space, the appointment of the child’s place of residence may become a good reason for one of the parents to claim a large share in the total property.

It is regrettable, but in most cases the mother acts as a manipulator. Also, sometimes children can become the subject of revenge on the former spouse, if he leaves the family to another woman. The decision to determine the child’s place of residence gives her, in her opinion, the full right to personally determine when and under what circumstances a father can communicate with his children after a divorce. The court during the divorce proceedings determines not only the place of the child's further residence, but also the frequency and duration of the visits of the father or mother, if the parents did not come to an amicable agreement on this issue.

Quite often, the offended spouse ignores the court decision and refuses the father to see the children. There are many cases when a mother even changes her place of residence in order to avoid meetings between her ex-husband and their common child. Or on the day on which the date was determined by law, leaves the house with the children long before the appointed time. In the process of divorce, the court does not take into account such circumstances of child manipulation. Violation of the decision on the frequency of visits is the next stage of the proceedings in the problems that have arisen between the former spouses.

Court papers

The path to the official determination of the place of residence of children lies through a magistrate's court. Everything happens as follows. The initiator collects the necessary papers, pays the state fee, which in January 2018 amounts to 300 rubles, and submits an application for divorce. The desire to determine the place of residence of the child with the mother is immediately expressed if the initiator of the process is a woman. And the consequence of this statement is the appointment of alimony. There are cases that at the place of residence or financial assistance, the spouses manage to reach an agreement before the divorce, but the law provides for the solution of all three issues at a time.

The claim for the purpose of the child’s place of residence must indicate:

• name of authority to which it is submitted;
• passport information about parents, address of their registration or actual residence, all known contact information;
• a history of marriage and divorce, information about joint children whose residence requires a court ruling;
• own arguments in favor of the place of residence of children;
• list of legislative acts on the basis of which a corresponding statement is made.

Naturally, an argument describing the benefits in favor of a particular place where it is planned to settle children after a divorce should be submitted from the best side, but without distorting the evidence. To determine the child’s place of residence, the court should have the most complete information on the domestic and other conditions created in the house or apartment, which is indicated in the statement of claim. Therefore, the house / apartment must check the guardianship authorities in advance and issue their opinion. But the plaintiff has the right not to be limited to dry official language, but to write down exactly what the convenience of the chosen place consists of: places familiar from childhood, close friends, a familiar school, kindergarten, proximity to the palace of creativity or a stadium for studying in circles. Arguments may be different.

Mom - girls, dad - boys

In Soviet times, during divorce proceedings, the practice of a peculiar “division” of children was observed. Often the decision of the question of determining the place of residence of the child with the father or mother was influenced by his gender. Husbands were given sons, wives - daughters. The court considered that both parents had the right to have a child, and there was an opinion that girls were closer in their emotional state to mothers and fathers to sons. The position of children was rarely taken into account, except in cases where the judge wished the welfare of the child. Fortunately, this practice is now considered illegal.

The statement of claim on the determination of the child’s place of residence is now rarely considered without the participation of guardianship authorities. Their function in the process is to comprehensively study the circumstances of family living during marriage, the availability of amenities, the material and emotional state of the environment where the child is brought up. They must determine whether the conditions for children staying with one of the parents after their divorce change for the worse. All factors are taken into account, but the main ones are emotional closeness with the mother or father and their financial well-being.

The presence of guardianship authorities in court is optional. Enough of their written opinion on the acceptability of the conditions of the house or apartment of the future stay of the family. You can also attach the psychologist’s conclusion about the closer emotional closeness of the children with one of the parents. The court in determining the child’s place of residence will necessarily take into account the opinion of specialists. In addition to the statement of claim, it is necessary to provide the originals of all the certificates and certificates confirming the data given in the paper on the registration of children and parents, the level of wages, accumulated savings. And of course, the originals of all the evidence will be required: on the conclusion and dissolution of the marriage, on the birth of children.

Right to choose

Nowadays, there is such a legal definition as "the opinion of the child." It is prerogative if the boy or girl is already ten years old. This procedure is not always resorted to, but only if the judge doubts with whom to stay with the children, if there is no consensus between the parents about this. If the arguments of one of the parties are more convincing (in their favor), the guardianship authorities also gave the same conclusion, but the second side insists that there is a personal desire of the son or daughter to stay with him, the child must be summoned to court. But if there are no disputes between parents, then the decision to determine the child’s place of residence by the court is made in accordance with the mutual desire of adults, without taking into account the views of the children.

The court can find out the position of children regarding their further residence both at the meeting itself and before it. At the same time, parents are not recommended to attend, so that persuasion, pressure or blackmail will not follow on their part. A one-on-one discussion with them is also undesirable. It is better in the presence of a neutral witness - a representative of the guardianship authorities, a psychologist, or someone close to the family who does not exert any pressure on the child, but can confirm the fact of his voluntary choice. Another important point: if for some reason the representatives of the guardianship authorities in the matter of determining the child’s place of residence do not recommend taking into account the opinion of the latter, and provide strong evidence in favor of their position, the court should accept it.

Ten-year-olds do not always understand the full degree of responsibility for their words and actions. Their emotional affection for one of the parents, who after a divorce is not able to provide them with proper maintenance and care, can cause many problems in the future. Children choose the unemployed, it happens that drinkers, mother or father out of pity. Or for other reasons. With an eye on all these factors, guardianship authorities in some cases do not recommend taking into account the opinion of the child.

In the interest of the child?

The statement that adults know better where and with whom the child will feel better is debatable. The same representatives of guardianship authorities are not in the family all 24 hours a day to make their judgment about the microclimate and psychological atmosphere in the house. With outsiders and without them, parents can be completely different and also possess the skills of masterly manipulation of others. When drawing up a claim to determine the child’s place of residence, a parent who believes that he has a more trusting and warm relationship with his son or daughter, and besides, he can provide them financially better than the second half, it is necessary to enlist the support of an independent psychologist. Quite often, especially if there is also evidence from friends and acquaintances of the family, the opinion of a specialist will be taken into account, and it will be higher than the conclusion of the guardianship authorities on the issue of which parent will be better off for the children.

Unfortunately, spouses' ignorance of this option or unwillingness to initially fight for their rights leads to the fact that trials are held without experienced child psychologists. An application for determining the child’s place of residence is often limited to a formal request to social services for custody or protection of motherhood and childhood with a request to participate in the process. The concept of the most acceptable living conditions is different for everyone. Someone needs the financial component of the standard of living, material and household amenities. Other - intellectual and emotional compatibility with loved ones. In most cases, the decisive argument is precisely the material side of the issue. But will the child always make a choice in her favor if he has to part with his adored father or mother? Is it possible to compensate for the abandonment of a loved one, and at times the only person close to the heart, with a new bicycle or a modern gadget? Unfortunately, the court in deciding the fate of the child does not take into account all the nuances.

Whose will take?

In addition to the psychologist and witnesses who can help preserve the child's living with a more caring and close parent, participation in the process of educators and teachers, psychiatrists, district police officers, juvenile inspectors, grandparents is possible. The more impressive the support when considering a claim to determine the child’s place of residence, the greater the chance of success. In addition to providing information about the emotional, psychological, intellectual intimacy between one of the parents and the children, witnesses can compile for the court a comprehensive picture of family life. For example, describe the moral character of a father or mother. Often, examples are provided of characteristics from the place of work and public organizations if the parent is a volunteer or participant in a charity or religious community. Conversely, a certificate of bringing him to administrative or criminal liability in different years of his life can reduce all claims to a child to nothing.

A similar fate awaits those who are registered in a narcological or psychiatric dispensary. In this case, even the enormous affection of the children to the parent and their desire to stay with him will not help. A sample statement of claim determining the child’s place of residence contains all the nuances that you need to focus on when drawing up your claim. The moral qualities of the second spouse is one of the most important points. As well as listing the remaining negative habits of your opponent. Smoking, addiction to alcohol or drugs are the most powerful of the arguments. But the court does not accept the intentional slander of the second parent. Verification of allegations may provoke a backlash if they are proved by evidence or documented. The one whose information will correspond to reality wins. Naturally, provided that domestic circumstances and financial capabilities also satisfy the judge.

The rights are the same, the benefits are different

Despite the equal rights of parents to their children, it is easier for mothers to defend them in court. Even if, according to a number of weighty criteria, she is inferior to her recent spouse. It is believed that in children it is with the mother that a closer family relationship is tied. With equal evidence in favor of the spouses, the woman has more chances to determine the place of residence of the child with her. It is enough for her to collect a standard package of certificates confirming her trustworthiness, so that the court without any doubt inclined her decision in her direction. While the father needs to try very hard to draw their sympathy to himself.

The easiest way is to prove that living with a mother will adversely affect the child’s mental development and will go against his interests. With the mother’s obvious love of alcohol, addiction to other bad habits, indiscriminate relationships with different men, a long absence without significant reasons (night work, illness or frequent business trips are considered essential), it is not difficult to convince the court of this version. With other “flaws” - dishonesty, mismanagement, and inattention to the interests of a son or daughter - it will be extremely difficult for fathers to win their rights. In his lawsuit on determining the place of residence of the child with his father, he needs as strong arguments as possible in his favor, which can become trump cards against his mother.

Pluses of the father:

• higher monthly income;
• the opportunity to attract highly professional tutors, coaches, if the son or daughter has a penchant for creativity or sport;
• better living conditions compared to what the mother can provide;
• high social status, prestigious position;
• more free time to spend with children, travel together;
• lack of bad habits;
• high moral principles;
• close affection of children.

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Counterclaim

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In addition, if during the initial trial of the court some facts of the winning party were invented, and the second parent could not refute them, he will have time to collect evidence in his defense. This will allow you to kill two birds with one stone: to whitewash yourself and show the negative side of the personality discrediting his honor and dignity of the former spouse (or spouse) in the struggle to determine the child’s place of residence. The claim in this case will be considered by the court in a different vein. In addition to the second or subsequent process, the losing father or mother can significantly improve their financial situation or living conditions and get an additional trump card in their piggy bank of arguments.

Change of circumstances

Sometimes a bailiff has to enter into a dispute over a child. This happens if the parent who won the custody case fails to comply with some points of divorce decisions. For example, not being able to see a father or mother with his own or even an adopted son or daughter. Determining the child’s place of residence allows the winning party to keep this situation under their control. The second parent has the right to appeal to the bailiffs, who are obliged to respond to the current situation.

With evidence of inadequate care for the mental state of a child who is suffering from separation from his father or mother, it’s easier to turn the situation in his own direction. Moreover, since the time of divorce, the differences in the alleged conditions that the parent who acquired the custody of the child guaranteed in court can significantly differ from the real environment and family upbringing during this period. Anyone who finds inconsistencies has the right to again file a lawsuit to determine the child’s place of residence. Judicial practice abounds with similar examples.

In addition to detecting this negative factor in terms of providing the child with everything necessary for his full development, other circumstances may also be exposed. For example, the actual residence of children with grandparents, while the father or mother does not know where. Or a sharp drop in the financial well-being of the parent, due to which he can no longer provide his son or daughter with a decent standard of living, saving even on products. Not to mention clothes, textbooks, a computer, and everything else that a child needs for full development. Under the circumstances, the second parent may raise the issue of re-determining the child’s place of residence. The practice of using the wait-and-see attitude with the goal of final victory in business is not uncommon. Which of the parents has a great love for children and the motivation to give them a decent upbringing and maintenance, he ultimately wins.