According to lawyers who are professionally engaged in the divorce process is not always in such disputes, the parents can agree. Sometimes it happens with loving parents, when about one of them not to say anything bad.
But more often, and this is clear from judicial practice, not always determine the residence of children after divorce is connected with the real concern of the parents about his fate. Often the requirement to leave the child with one parent is painful revenge for a failed life together.
Given that disputes in our courts a lot, and uniform judicial practice in fact no explanation of Judicial Board on civil cases of the Supreme court of the Russian Federation can be useful citizens, and regional judges.
In our case, the parents of the child the court also had to decide with whom to live. The situation was the standard – both parents was characterized positively. But local courts have disagreed – who has the best opportunity to raise a child in common. The district court decided that the right to leave the baby’s mother, although her living conditions were worse than dad’s. But the second instance quashed the decision and sided with the former spouse.
In the end, to review the various results of one dispute had to the Supreme court. The Judicial Board on civil cases and explained what circumstances would be considered main in the same family disputes.
In our case, everything started with the fact that a citizen brought a lawsuit on husband, with whom she split but not officially divorced. The woman asked to determine the child’s place of residence from her. Father, in turn, believed that the son should live with him. In the end, has the following picture – the child is passed from hand to hand. That is, he lived first with mother, then father, then mother asked the court to give her son. Complicating the situation, oddly enough, the fact that the parents was characterized positively.
In the first instance, the court left the child with the mother by reducing the time of the visits between father and child up to four hours on weekends and public holidays. When deciding in favor of the plaintiff, the court remembered one of the principles of the Declaration of the rights of the child. It said the following: “a Young child should not, except when there are exceptional circumstances, be separated from his mother.”
the Father appealed against this verdict. And the appeal took the opposite decision – the child will live with his father. The judges of second instance proceeded from the fact that the living conditions of the father better. The man – businessman, lives in her own house, where the child has a separate room and everything we needed. Plus the father is really involved in the upbringing of his son. The mother of the child is not a slave��melts, lives on child support for older child, on welfare and help from relatives. And her living conditions worse.
the appeal came to the conclusion that the mother is not a real possibility in the child’s upbringing, which is already attached to his father.
such decisions, the case went to the Supreme court, which examined the dispute and stated: the advantage of material and living conditions of one of the parents is not an unconditional basis for satisfaction of requirements of that parent.
According to the Supreme court, in such cases we should proceed from the interests of the child in totality “of the circumstances characterizing the situation that has developed in the place of residence of each of the parents.” However, in order to find out what the situation is, you will need the evidence – the court’s findings “should not be General and abstract,” says the ruling on the case, the court should refer to the regulations and evidence. They were enough, said the Supreme court.
the High court recalled that article 78 of the Family code. It says that if the courts consider disputes connected with education of children, to participate in the proceedings need to involve the guardianship – regardless of who filed the lawsuit to protect the child. Guardianship should conduct a survey of the living conditions of the child and those who want to raise him. The certificate of inspection and based on it a conclusion on the merits of the dispute, provide to the court. “The conclusion of body of guardianship and guardianship must be signed by an authorized officer of the guardianship authority or body of local self-government,” recalls sun. However, in case such detention was not.
And yet, the Supreme court said that the court has appointed examination, which was requested by the father of the child. Not appointment by the court examination is considered a serious violation of procedural law. In the end, the Supreme court ordered the appeals to reconsider the case.