Questions of a legal process of hearing of cases of establishment of adoption (adoption) of children of
we Will consider features of a legal process of adoption, proceeding from provisions of the Family code of the Russian Federation, the Code of civil procedure of RSFSR (taking into account changes and additions made by the Federal law of August 21, 1996 N 124 - Federal Law), the government resolutions concerning questions of adoption.
Adoption represents the legal act owing to which adopted both their posterities and adoptive parents and their relatives are equated in personal non-property and property rights to relatives by origin (Art. 137 of the Family code).Adoption (adoption) is allowed by
only concerning minor children and only in their interests. Thus, interests of minors are defining at adoption establishment. What is “interests of minors“ and when adoption answers them?
Adoption is subject to consideration as made for the benefit of children when the motives and ideas directed to granting adopted the rights guaranteed by the Constitution of the Russian Federation, Family and Civil codes of the Russian Federation for the purpose of education and harmonious development of his personality are the cornerstone of actions of adoptive parents, and adoptive parents get the rights, are ready and capable to perform duties of parents. Adoption in strict accordance with the current legislation is made and leads to establishment of the legal consequences provided by Art. 137 of the Family code of the Russian Federation.
to find out whether there corresponds adoption to interests of minors, except legal, needs to study also the social problems accompanying this legal act. For example, item of 1 St. 123 Demands the family code that at the device of the child, without parental support, his ethnic origin, belonging to a certain religion and culture, the native language, a possibility of ensuring continuity in education and education were considered.
Courts consider cases of adoption according to Art. 125 of the Family code as special production by the rules provided by the civil procedural legislation.the Proceeding begins
with the statement of persons (face), persons interested to adopt the child, which according to Art. 263. 1 GPK it is filed a lawsuit at the place of residence (stay) of the adopted child. It allows to allow quicker business and to recruit in it agencies of guardianship and guardianship. Group of companies, those according to Art. 34, St. 121 The family code local governments which within borders of municipality know identification and the device of children without parental support are.
In the statement the citizens wishing to become adoptive parents have to enter the surname, a name, a middle name and the address of the residence, a surname, a name, a middle name of the adopted child, the place of his residence or stay, the information about parents of the adopted child, presence at it of brothers and sisters. The statement has to be motivated, that is it is necessary to specify the circumstances proving a request for adoption of the child, and the proofs confirming these circumstances in it.
Besides, adoptive parents have to reflect the desire about change of a surname, name, middle name of the adopted child in the statement, dates of his birth (at adoption of the child aged about one year), the birthplaces, about record of adoptive parents (adoptive father) as parents (parent) adopted (Art. 263. 2 GPK).
At adoption in the territory of the Russian Federation by citizens of the Russian Federation of the child who is the foreign citizen, applicants except the documents specified in subitem 1 - 6 of the p. 2 of Art. 2632 of GPK have to present a consent of the lawful representative of the child and competent authority of the state which citizen he is, and if it is required according to the legislation of the specified state and (or) the international treaty of the Russian Federation, a consent of the child to adoption.
the Judge by preparation of business for judicial proceedings obliges agencies of guardianship and guardianship at the place of residence (stay) of the adopted child to bring the conclusion about validity and compliance of adoption to interests of the adopted child into court. Such requirement is put in item 3 of Art. 129 of the Family code. Probably, this conclusion can be equated to expert as it is about the question demanding application of special knowledge in the field of pedagogics and psychology. From the point of view of pedagogics and psychology agencies of guardianship and guardianship have to draw such conclusion.
the Family code does not contain the provision on that, the conclusion given by agencies of guardianship and guardianship is obligatory for court or not. Proceeding from judgment that such conclusion can be equated to expert it is necessary to approach permission of the specified question through Art. 78 of GPK. According to it the expert opinion is optional to court and is estimated by it by the rules established in Art. 56 of GPK, that is the court estimates proofs on the internal belief based on impartial, comprehensive and complete examination the available in proofs in their set, any proofs have no in advance established force for court. Disagreement of court with the conclusion is proved in the decision on business.
the Important point is receiving from the persons of a consent to adoption of the child identified by the law.to
For adoption of the child needs a consent of his parents (Art. 129 of the Family code). The requirement to receiving a consent of parents by court serves as a guarantee of observance of their rights and legitimate interests. It is represented that the court has to explain to parents (if to adoption of the child it is agreed by them in court session) consequences of the action made by them. If the consent to adoption is expressed by parents in establishment where there is a child, or at the notary, the court checks the fact of an explanation of the action by this institution or the notary made by them. The same actions have to be made by court when receiving a consent to adoption of the child from his grandmothers and grandfathers when parents of the child did not reach 16 - summer age. To adoption of the child it has to be agreed by each parent. > it is not required by
of the Consent of parents of the adopted child to p (according to Art. 130 of the Family code) if they:
- are unknown or recognized by court is unknown absent;
- are recognized as court incapacitated; are deprived of
- by court of the parental rights and from the moment of decision on the matter there passed six months (item 6 of Art. 71 of the Family code);
- for the reasons recognized by court disrespectful more than six months are not lived together with the child and evade from his education and contents.
Point 5 of Art. 263. 3 GPK it is provided that in the presence of the circumstances specified in Art. 130 of the Family code, to court the document confirming it, that is earlier passed judgment has to be submitted.
Proceeding from it, item 4 of Art. 130 of the Family code enters new category of affairs - about recognition disrespectful the reasons of not accommodation of parents together with the child and evasion from his education and contents.As such requirement limits to
the rights of parents, that is there is a dispute on the right, the these cases have to be considered in a claim order with involvement of parents as defendants. An essential condition of presentation of such claim is designated in the item of 4 St. 130 The family code the term during which parents did not live together with the child and evaded from his education and contents, - more than six months.
the Law directly does not provide who can appeal to court with the similar claim. Probably, bodies and institutions to which obligations for protection of the rights of minor children are assigned have such rights. In this case it is agencies of guardianship and guardianship, establishment for children - orphans and children without parental support.
Refusal of court of receiving a consent of parents of the child to his adoption has to be motivated and supported with the corresponding proofs - the copy of a judgment about deprivation of the parent (parents) of the parental rights, recognition of parents incapacitated, is unknown absent or died, the act confirming that the child was thrown testimony.
the Obligation for submission of proofs about the reasons of not accommodation of parents together with the child and their evasion from his education and contents has to be assigned to the applicant or other person participating in business referring to this circumstance (p.1 by Art. 50 of GPK).
If parents of the adopted child did not reach age of 16 years, then, as appears from the formulation of item 1 of Art. 129 of the Family code, except their consent also the consent of their parents or trustees (trustees) is necessary, and at their absence - a consent of body of guardianship and guardianship.
According to item 1 of Art. 131 of the Family code a consent to adoption needs to be received also from trustees (trustees), foster homes, educational and medical institutions, establishments of social protection and other similar establishments where there is a child. But for the benefit of the child the court has the right to pass the decision on its adoption and without consent of specified persons (the item of 2 St. 131), that has to be proved.
If adopted reached age of ten years, then according to Art. 132 of the Family code adoption requires the child`s consent. Thus, if adopted before decision of court on the case of establishment of adoption ten years were executed, the court has to receive its consent (with observance of requirements of Art. 173 of GPK). At the same time it is necessary to find out its attitude towards adoptive parents, character of the relations established between them what feelings he to them has.
In this regard the precept of law of the Civil code of France is of interest:“ Only the children familiar with adoptive parents within at least six months can be adopted“. Such requirement of the law is justified as excludes a possibility of adoption of children by casual people, helps to get acquainted closer to adoptive parents and adopted. It would be expedient to enter similar norm in the Russian legislation.
However if before filing of application about adoption the child lived in a family of the adoptive father and considers it the parent, adoption, as an exception, can be made without receiving a consent of the adopted child (item 2 of Art. 132 of the Family code).
Point 2 of Art. 129 of the Family code provides that parents can withdraw agreed by them to adoption of the child. It should be noted that such right is granted by the law only to parents adopted and before decision of court about its adoption. However there can be a situation when the court does not take into account a response parents adopted agreed by them. For example, if in court it is established that there are bases listed in Art. 130 of the Family code to adoption of the child without consent of parents.Telling
about persons from whom the court has to receive a consent to adoption of the child, it is impossible to forget about grandfathers and grandmothers adopted as at adoption their rights are also affected. The court receives their consent at adoption of the child of the minor parents who did not reach age of 16 years (item 1 of Art. 129) and also when they act as trustees (trustees).
In the first case the court has to receive a consent from grandmothers and grandfathers of both minor parents. The law does not provide a situation when one of parents of the adopted child reached age of 16 years, and there is no second. Probably, and here the consent to adoption of the child by court has to be received from the grandmother and the grandfather, but only the second spouse.
the law directly provides In the second case that the court can ignore opinion of grandmothers and grandfathers and to pass the decision on adoption without their consent (item 2 of Art. 131).the Legislator enshrined by
in the Family code various requirements to a form in which the consent of the persons participating in business to adoption is expressed.the Consent of parents to adoption of the child has to be expressed by
in the statement which is notarially certified or certified by the head of establishment in whom there is a child, without parental support, or body of guardianship and guardianship on place of production of adoption of the child or at the place of residence of parents. The consent of parents to adoption of the child can be expressed by them directly in court by production of adoption. As St. 129 The family code does not contain the instruction on in what form the consent of parents to adoption of the child directly in court is expressed, it is possible to draw a conclusion that it can be expressed both in writing, and orally.the consent to adoption by trustees (trustees) under whose guardianship (care) there is a child, adoptive parents, educational and medical institutions, establishments of social protection of the population and other similar establishments where there is a child has to be in writing expressed to
According to Art. 263. The court considers 4 GPK cases on adoption of the child with obligatory participation of adoptive parents (adoptive father), representative of body of guardianship and guardianship, and also the prosecutor. If it is necessary, the court can recruit in the case of parents (parent) of the adopted child, his relatives and other interested persons, and also the most adopted if it reached age of ten years.
However participation in one process of adoptive parents and parents adopted, can lead his relatives to disclosure of secret of adoption. Therefore it is desirable that hearing of such affairs was carried out without presence in the hall of court session of adoptive parents. Undoubtedly, this procedure has to be settled by the legislator.
Court, investigating the identity of adoptive parents, surely has to check:
- their capacity; whether they were deprived by
- the parental rights or limited to court in the parental rights; whether they were discharged by
- of duties of the trustee (trustee) for their inadequate performance; whether
- state of health;
- existence of the marriage relations (proceeding from the p. 2 of the Art. 127 of the person, not married among themselves, cannot adopt in common the same child).
Estimating a state of health of applicants, the court will need to mean N 542 List of diseases approved by the resolution of the Government of the Russian Federation of May 1, 1996 in the presence of which the person cannot adopt the child, accept it under guardianship (guardianship), take in a reception semyyu*.by
B it the following diseases are included: tuberculosis (active and chronic) all forms of localization at sick I, II, V groups of the dispensary account; diseases of internals, nervous system, oporno - the motive device in a decompensation stage; malignant oncological diseases of all localizations; drug addiction, toxicomania, alcoholism; infectious diseases before removal from the dispensary account; mental diseases at which patients are recognized in accordance with the established procedure as incapacitated or it is limited by capable; all diseases and injuries which resulted in disability of I and II groups, excluding working capacity.by
Court by production on cases of establishment of adoption the requirement of item 2 of Art. 124 of the Family code according to which adoption of brothers and sisters by different persons is not allowed has to be observed, except for cases when adoption is equitable to interests of children.
If children are adopted by foreign citizens or persons without citizenship, the court has to mean that such adoption is made as Art. 165 of the Family code and is allowed only when it is impossible to transfer these children to education to families of the citizens of the Russian Federation who are constantly living in the territoryand the Russian Federation, or on adoption to relatives of children irrespective of nationality and the residence.by
As it is established to paragraph 2 of item 3 of Art. 124 of the Family code, children can be transferred to adoption to the citizens of the Russian Federation who are constantly living outside the territory of the Russian Federation, to the foreign citizens or persons without citizenship who are not relatives of children only after three months from the date of statement of children on the centralized account.
Cases of establishment of adoption of the child are considered by court in the closed court session (Art. 263. 4 GPK). The law does not contain special norms on terms of consideration of this category of affairs, however the need for them arises inevitably (to remember enough the adoptive parents imitating pregnancy). Whether courts will be able to meet requirements of these people and to consider their cases first of all?Partially an exit can be found
in legislative fixing of special terms of consideration of this category of the affairs considering interests of the adoptive parents imitating pregnancy.
According to Art. 263. 5 GPK court, having considered the application for adoption of the child in essence, passes the decision on allowance of the application or on refusal in its satisfaction completely or regarding satisfaction of a request of adoptive parents (adoptive father) for record them as parents (parent) of the child in assembly record about his birth, and also about change of a birth date and birth place of the child.
So, at decision about adoption establishment the court has to resolve and directly reflect the following questions in resolutory part of the decision: a name, a middle name and a surname of the adopted child and the fact of their change (Art. 134 of the Family code), change of a birth date and birth place of the adopted child (Art. 135), record of adoptive parents as parents of the adopted child (the Art. 136), about preservation of personal non-property and property rights and duties of the father or mother, and in case of death of one of parents - about preservation of personal non-property and property rights and duties in relation to relatives of the died parent (subitems 3, 4 of Art. 137), about preservation for the adopted child of the right for pension and grants (Art. 138).It is advisable to
that in the decision there was a record about acquaintance of participants of process with contents of Art. 139 of the Family code “Secret of adoption of the child“ according to which the judges who passed the decision on adoption of the child, or the officials who are carrying out the state registration of adoption, and also the person otherwise informed on adoption are obliged to keep secret of adoption of the child.introduction of a special order of office-work for this category which would exclude a possibility of disclosure of secret of adoption Is desirable to provide
the Copy of a judgment to which adoption of the child is established goes court within three days from the date of the introduction of a judgment to validity in body of civil registration in the place of decision for the state registration of adoption of the child.by
According to Art. 140 of the Family code in a judicial proceeding make also adoption cancellation. Proceeding from what in this article is told not about cancellation of earlier passed decision it is about other category of affairs, with the subject and the specific bases to excitement. Cases of cancellation of adoption are subject to consideration in a claim order.
his parents, the child`s adoptive parents, the adopted child who reached age of 14 years, body of guardianship and guardianship, the prosecutor (Art. 142) have Rights to demand cancellation of adoption of the child.
the Bases to cancellation of adoption are evasion of adoptive parents from performance of the duties of parents assigned to them, abuse of the parental rights, ill treatment of the adopted child, chronic alcoholism or drug addiction. Besides, the court has the right to cancel adoption of the child and on other bases proceeding from interests of the child and taking into account opinion of the child (item 2 of Art. 141).
Because cases of establishment of adoption and of cancellation of adoption of children demand from judges not only knowledge of legal questions, but also a certain psychological and pedagogical preparation, for their most correct permission they have to be considered by constantly same judges having necessary knowledge and experience. Of course, creation of specialized family courts would be the best solution of this question.