The disputes connected with education of children. Comments of the lawyer
Unfortunately, this subject is close to very many parents. On disagreements in questions of education breaks much kopyev. Discrepancy of views of education of children can lead even to family disorder then disputes do not cease, and inflame with a new force. Two parents, being at the same time lawful representatives of the child, cannot find a common language even in not fundamental issues. To desire “to make as it is better“ the desire to ego-trip, revenge for last offenses, to manipulate the child to suit the own ends is often added. Of course, most often, owing to various reasons, the child remains with mother, and in many respects depends on mother`s position as there will be relations between the former spouses concerning education of their children. However, it is frequent and fathers use the rights granted by it the law for clarification of the personal relations with the ex-wife, inquiries of the child about private life of mother, to squaring of accounts. Quite often fathers after divorce do not carry out the parental responsibilities on education and maintenance at all, or carry out them irregularly and spontaneously, “on inspiration“, without understanding or without wishing to understand that the child needs full and regular communication with the father, and also his material support up to majority. For this reason I would like to explain in this article the rights and obligations of the parties, an order of settlement of disputes in the such conflicts especially as the matters, judging by subjects in conferences, concern many and many.Materials of this article are prepared by
on the basis of the family legislation of Russia, resolutions of Plenums of the Supreme Court of the Russian Federation, law-enforcement practice. However, it must be kept in mind that even in judicial authorities of the person, participating in settlement of disputes, the children connected with education, can face violation of the rights. The knowledge of the law in such situation is just necessary, and this article I try to meet lacks in knowledge of parents and other interested persons for the correct and competent resolution of conflicts. It is worth to remember that the peace agreement of the parties in such situations is more preferable also. In - the first because “a lean compromise is better than a fat lawsuit“, in - the second, children turn out will and bondage involved in opposition of the parties and it is inevitably reflected in their mentality, and in - the third, no judge and body of guardianship is able to untangle a difficult ball of the relations in a family if members of this family (even if also being) do not want to interact with each other. It is also not necessary to forget and that, unfortunately, really it is possible to execute a judgment for this category not always.
treat the disputes connected with education of children, to subordinated vessels (i.e. when dispute is considered by court):
- disputes on the residence of the child at separate accommodation of parents;
- implementation of the parental rights by the parent living separately from the child;
- about removal of obstacles to communication with the child of his close relatives;
- about return to parents of the child withheld not on the basis of the law or the judgment;
- about return to trustees (trustees) of the ward from any persons holding at themselves the child without legal basis;
- about return to the adoptive parent of the child withheld by other persons not on the basis of the law or the judgment;
- about adoption establishment;
- about adoption cancellation;
- about deprivation of the parental rights;
- about restoration in the parental rights;
- about restriction of the parental rights;
- about cancellation of restriction of the parental rights.
In the first part of article we will dwell upon the disputes over education specified in pct 1 - 6.
the Residence of the child at separate accommodation of parents (irrespective of, they are married or not) is established by the agreement of parents. In case parents cannot come to the agreement on the matter, the residence of the child is defined by court. The court takes into account age of the child, his affection for each of parents, brothers, sisters and other family members, the moral and other personal qualities of parents, the relations existing between each of parents and the child, a possibility of creation to the child of conditions for education and development taking into account a kind of activity and an operating mode of parents, their financial and marital status and also other circumstances characterizing a situation which developed in the place of residence of each of parents. However, as emphasizes the resolution of Plenum of the Supreme Court of the Russian Federation of May 27, 1998. No. 10, advantage in itself in financially - household position of one of parents is not the unconditional basis for satisfaction of requirements of this parent.Should mean
that courts at permission of such disputes recognize from the principle that the juvenile child should not, except those cases when there are exceptional circumstances, to be separated from mother. If the child reached 10 - summer age, then the accounting of his opinion on a question with whom he wants to live, is obligatory unless it contradicts interests of the child. That is the court can make the decision contrary to desire of the child when the parent with whom the child wants to live, it involves it in alcoholism, occupation by prostitution, vagrancy, brings up it on the principles which are not meeting standards of morals and morality. All these circumstances are carefully studied by court on the basis of the produced evidence. The desire of the child to live with one of parents comes to light by poll of the child in the presence of the teacher, the class teacher, etc., in the situation excluding influence on it of interested persons. At poll the court finds out whether the opinion of the child is a consequence of impact on it of one of parents (other interested persons), whether the child realizes own interests at expression of this opinion and as he proves it.parents have to know
On disputes on implementation of the parental rights by the parent living separately from the child that they have the right to conclude in writing the agreement on a procedure of the parental rights the parent living separately from the child. By this agreement duration and frequency of meetings with the child separately of the living parent, the place of these meetings, etc. can be installed. If parents cannot come to such agreement, then upon the demand of one of parents dispute is resolved by court with participation of body of guardianship and guardianship.the Court determines by
an order of communication of the child with separately living parent taking into account circumstances of each concrete business, proceeding from the right of such parent for communication with the child, participation in his education and the solution of questions of receiving education by the child, and also from need of protection of the rights and interests of the child at communication with this parent. So, in a case when meetings with separately living parent put to the child serious mental injuries, and it becomes irritable, nervous, such circumstances are by all means considered by court at decision.
Only in exceptional cases when communication of the child with separately living parent can do harm to physical and mental health of the child and his moral development, the court has the right to refuse to this parent satisfaction of the claim for definition of an order of its participation in education of the child, having stated motives of the made decision.Having determined by
an order of participation of separately living parent in education of the child, the court warns other parent about possible consequences of non-performance of a judgment. Non-performance by the defendant of a judgment or creation of obstacles by it for its execution, despite application to the guilty parent of the measures provided by the law, can be the basis for satisfaction of the requirement of the parent living separately from the child about transfer of the minor to it.Should tell
that the Supreme Court of the Russian Federation obliged in 1998 inferior courts at decision about divorce of the spouses having minor children to take measures to protection of interests of minor children irrespective of whether dispute on children is excited. The court is for this purpose obliged to explain to the parties that separately living parent has the right and the parent with whom the minor having no right to interfere with it lives is obliged to take part in education of the child, and.
in case of disputes on removal of obstacles to communication with the child of his close relatives (grandfathers, grandmothers, brothers, sisters and other relatives), the body of guardianship and guardianship can oblige parents (one of them) not to interfere with this communication and to provide to close relatives of appointment in the order established by this body.
the Right for communication with the child of his close relatives even of the remote degree of relationship, and not just the grandfather and grandmother, is the short story in the existing Family code. Parents should consider that the law does not assign an obligation for education of children to the grandfather and the grandmother, other relatives. This duty at them arises only in case they are appointed as trustees or trustees.
If after decision by body of guardianship and guardianship parents (one of them) continues to interfere with communication with the child, then close relatives whose rights are violated, or body of the guardianship and guardianship having the right to appeal with the claim to court for ustraneniye of obstacles to communication with the child. The court at decision on such disputes is guided, first of all, by interests of the child and his opinion.
also such cases when owing to actions from individuals or establishments for various reasons the child does not come back to parents Happen. Such situations can develop when the child is temporarily given to education to friends, to relatives, the trustee, in child care facility because parents cannot temporarily carry out care of the child (owing to an illness, long business trip etc.) . In this case, if at the request of parents the child does not come back, there is a dispute on return to parents of the child withheld not on the basis of the law or the judgment which is allowed by court. By law parents have the privilege before other persons to education of the children and can demand return of the child from any person holding it at itself not on the basis of the law or a judgment. However the court can leave the claim without satisfaction if establishes that transfer of the child to parents contradicts interests of the minor. The opinion of the child on this matter is also considered according to provisions of the Family code. At permission of this dispute the court estimates a real possibility of parents (parent) to provide appropriate education of the child, nature of the developed relationship of the child with parents, affection of the child for persons at which it is, and other concrete circumstances influencing creation of normal living conditions and education of the child by parents, and also persons at whom the child is actually and brought up.to
If during judicial proceedings it is established that neither parents, nor persons who hold the child who is not able to provide it appropriate education and development the court along with refusal in the claim submits definition about transfer of the child for care to agencies of guardianship and guardianship the most acceptable way of the device of its future was chosen.the Right similar to the right of parents to demand return of the child from any person holding it at itself not on the basis of the law or a judgment is provided by
to trustees, trustees and adoptive parents. These persons have the right on court to resolve controversial issues of of return to trustees (trustees) and adoptive parents of the child from any persons holding at themselves the child without legal basis. And, specified persons can even exercise such right in case the child is kept by close relatives.