The parent living separately from the child, by virtue of the law, has the right to communicate with the child, as well as to participate in his education and upbringing. In turn, the parent with whom the child lives should not interfere with this communication.
In accordance with paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 05/27/1998 N 10 (as amended on 02/06/2007) "On the application of legislation by the courts in resolving disputes related to the upbringing of children" in the event that the parents could not come to an agreement on determining the order of communication with a child, a parent living separately from the child, this dispute is resolved by a court with the participation of the guardianship and guardianship authority.
When determining the order of communication between a parent and a child, the child's age, state of health, attachment to each of the parents and other circumstances that can affect the child's health and moral development are taken into account. These circumstances include: the length of time during which the child did not communicate with the plaintiff; remoteness of the place of residence of the separately living parent from the place of residence of the child; living conditions in which the child will be with the plaintiff, the child's day regimen.
A statement of claim to determine the procedure for communicating with a child is submitted to the district court at the place of residence of the defendant. This claim is not subject to state duty. As the Supreme Court of the Russian Federation explained in its review of the practice of resolving disputes related to the upbringing of children by courts, on July 20, 2011, the requirement to pay the state duty on disputes related to the upbringing of children is illegal, since these disputes relate to cases of protecting the rights of the child and the duty is not are taxed, which follows from the provisions of clause 15 of part 1 of article 333.36 of the Tax Code of the Russian Federation.
Sample statement of claim on determining the procedure for communicating with a child
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V Name of the court district court of St. Petersburg, postcode, St. Petersburg, street _________, house ___. Plaintiff: Full Name residing at: postcode Defendant: Full Name residing at: postcode, Saint-Petersburg, street _________, d. __, box __, apt. ___. "Name of the Moscow region at the place of residence of the father", address: postcode Third Party: Guardianship and Trusteeship Authority of the Municipal Formation "The name of the MO at the place of residence of the mother", address: postcode, St. Petersburg, street _________, house __, box __, apt .___. The plaintiff is exempted from paying the state fee (Clause 15, Part 1, Article 333.36 of the Tax Code of the Russian Federation) |
STATEMENT OF CLAIM
on determining the order of communication with the child
Since "___" ___________ 20__ I am married to Surname First name Patronymic of the defendant... We have a young daughter from marriage ( son) - Surname First name Patronymic of the child, "__" _________ 20__ year of birth series and number of birth certificate, by whom and when issued... Until "___" ___________ 20__, we lived at the address of my registration, where our child is also registered.
Currently, the marriage between me and the defendant is terminated series and number of the divorce certificate, by whom and when issued (either the marriage is not dissolved, but the actual marriage relationship is terminated). Since "__" _________ 20__, the defendant with the child lives separately from me at the place of her registration.
The defendant is currently interfering with my communication with the child. Further, indicate the specific facts of obstruction of communication and refusal to reach an agreement on determining the procedure for communication with the child. For example: to my requests made in person "__" _________ 20__ on how to come to a mutual agreement to regulate the possibility of my communication with the child, the defendant refused. As a condition for my communication with the child, she demands money from me, unreasonably claiming that the monthly funds transferred to her for the maintenance of the child in the amount of _______ rubles are clearly not enough for this... At the same time, I have always performed and continue to fulfill all parental duties properly.
All of the above will be confirmed by witnesses, whose appearance in court will be ensured by me:
1. Name of the witness
2. Name of the witness, residing at the address: St. Petersburg, street ________, d. ___, bldg. ___, apt .___.
By virtue of Art. 54, 55 of the Family Code of the Russian Federation, a child has the right to be raised by his parents, to ensure his interests, all-round development, and respect for his human dignity. The child has the right to communicate with both parents, grandfather, grandmother, brothers, sisters and other relatives.
In accordance with the provisions of Art. 61, 63 of the RF IC, parents have the right and are obliged to bring up their children. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.
According to Art. 66 of the RF IC, a parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues of the child's education. The parent with whom the child lives should not interfere with the child's communication with the other parent, if such communication does not harm the child's physical and mental health, his moral development.
Considering the above, guided by Art. 61, 63, 66 RF IC,
I BEG:
Set the following order of communication to me Full name of the plaintiff with daughter ( son) Full name of the child, "__" _________ 20__ year of birth:
Every second and fourth weekend of each month (from 11:00 Saturday to 21:00 Sunday), outside the mother's home and without her presence;
During my annual summer vacation, 28 calendar days, during the winter holidays, 7 calendar days outside my mother's home and without her presence.
Applications:
1. Notarized copy of the child's birth certificate;
2. Notarized copy of marriage certificate (divorce);
3. Certificate of registration f.9;
4. A copy of the application to the guardianship and guardianship authorities and the response from the guardianship and guardianship authorities;
5. Copies of the statement of claim with attachments for the defendant and third parties.
"__" _________ 20___
Plaintiff's signature
By law, both parents have the same rights to ensure the full upbringing of the child. When they are divorced, the child, according to the law, will live with one of the parents, while the second is guaranteed the constitutional right to full upbringing and spending time. As practice shows, there is freedom of communication with your child, receiving all the necessary information on education, standard upbringing, if necessary, treatment. In order to be able to exercise this right, a statement of claim is provided regarding the determination of the procedure for communication of a particular parent with his child. It should be noted that not only a member of the former family who now lives separately from the child has such a right, but also living together when such a need arises for the subsequent determination of meetings with a common child living with the second parent.
What does the court rely on when considering a claimed claim
When considering a statement of claim to establish a procedure for subsequent communication with their child, representatives of justice are guided by the following factors:
- The current state of health of children, given which parent will be more comfortable and safer to be with. If there is a question that children with disabilities, the problem of the best provision of special care is considered, in that case, a court decision will be determined, if the care maximally corresponds to the recommendations of medical specialists;
- Possible attachment to each of the two parents, which is expressed in the child's own desire to stay with the mother or father. As a rule, this practice is most widespread in other countries, in Russia they also began to pay attention to this factor;
- Formed remoteness of residence of former family members, which is expressed in the complexity of regular visits to the child and the need to travel (for example, when it comes to the stay of parents in different settlements outside the region, region);
- In the event that the claim states a requirement to leave the child for the night, the representative of the court considers the issue of providing the child with an optimal place to sleep and rest, which is also closely watched by the representatives of justice.
Taking into account all of the above, it is necessary to specify in detail the very possibility of future provision of conditions by the parents in the process of direct communication in the sample of the drawn up statement of claim to determine the procedure for communication between both parents and the child.
What is indicated in the claim
It is imperative that the claim must contain information regarding the provision of favorable conditions for the processes of the realized right to communicate. When offering a mode of communication, you should certainly take into account your own working order, a similar working mode of the defendant, visits by the child to various special institutions (for example, the same kindergarten, if there is a need for this, schools, developmental circles and sports sections). It should be borne in mind that the other parent also has every right to spend time with their children, for example, on weekends, available vacation, fallen holidays, in particular, the birthday of the child himself.
Features of the rules for filing a claim
When, before filing a claim, the communication was episodic, it would be quite natural to assume that in a completely unfamiliar environment the child will feel uncomfortable and even find himself in a stressful situation. In this case, it is worth asking the court to communicate for a limited period of time.
When a verdict has been passed, its presence does not prevent the plaintiff from filing a new claim in the case, in which a requirement will be formed regarding the establishment of a different procedure for communication when the situation changes. This is true for cases when at the time of separation the living conditions are the same, and then they begin to change.
Within the framework of the proceedings, it is necessary to declare the need for a special forensic examination, the purpose of which is to establish favorable communication between the child and the parents living separately. Various options for solving problems regarding the establishment of participation in the upbringing of a child can be made by district or city courts. The filing of a claim is carried out directly at the place of current residence of the defendant; when drawing up the document, the fee is not paid.
Content of the claim
According to regulatory requirements, the claim contains the following information:
- The title of the court is indicated in the head of the document, complete information is provided regarding the defendant and the plaintiff (full name, address of actual residence is indicated);
- The name of the document itself is indicated with full information regarding the intended purpose. Additionally, it may be indicated that the document is in the nature of eliminating obstacles to communication with children, subsequent participation in education and many other issues;
- In the content of the document, it is required to indicate the very fact of a previous marriage between the plaintiff and the defendant (an indication of the exact date of marriage and full name is given). Further, it is also necessary to indicate that there are children or one child from this marriage, indicating the dates of birth, full name;
- The time of termination of the actual relationship is indicated, after which the established common economy is not maintained and the marriage is dissolved (in the event that at the time of preparation of the appeal, the marriage is not dissolved, this is also indicated in the general procedure). The plaintiff also indicates the fact that the child lives with the defendant;
- It is imperative to provide a general description of the state of health of the child or children, provided that they need or do not need special support. According to the available data, the child is equally attached to each parent;
- Within the scope of the claim under consideration, the plaintiff asks the court to consider the composition of the case and take into account certain circumstances that may affect the emotional, physical state of the child, and ensure full moral development in the future.
It is necessary to attach information that the personal qualities of the plaintiff in everyday life, in the performance of their official duties at the workplace, are characterized on the positive side. Specific requirements in the legal framework are outlined, in particular, they are regulated by paragraphs of Article 66 of the UK. In this aspect, the parent is given the full right to communicate with children and spend time with them, to exercise the right of joint upbringing. On the basis of the same article, the parent has the right to take part in the choice of the place of education of the child and other circumstances. It is worth pointing out the fact that the defendant is putting up an obstacle to this, a specific list of actions is given, aimed at excluding full-fledged communication with the child.
After a divorce, former spouses often have disputes about children. Arguments about who the children stay with are not as frequent as disagreements between spouses about the procedure for meeting a child with a parent who lives separately.
It's no secret that most often children stay with their mothers, and fathers are different, and not all of them strive to communicate with children, and even more to their content. And as a result, claims of mothers to recover child support from fathers who do not want to voluntarily participate in the upbringing and maintenance of children are very common.
This is not to say that children always stay with their mothers. There are many cases when, by agreement between the parents, the child remains with the father, or this is due to the fact that the mother improperly fulfills her parental duties, and the father has to bring up the children.
In this article, we will consider the classic situation when, after the breakup of the family, the child remains with the mother, and she begins to interfere with the father in normal communication with the child, and sometimes even forbids seeing him (hides the child, does not allow the father to see him), or dictates her own conditions and rules, severely restricts communication, does not allow taking the child on weekends, etc.
The situation can develop and vice versa, when the child lives with the father, who does not allow the mother to see him.
Such situations arise against the background of disagreements between parents, these are mutual resentments, ambition and anger, a desire for revenge, etc. Many mothers try to manipulate their ex-spouses with the help of their child.
Unfortunately, not many parents, in the heat of a showdown, think about the fragile psyche of a child, in fact putting their ambitions and ego above the interests and well-being of their own child.
Any dispute that parents cannot resolve peacefully and consistently must be resolved in court.
Family disputes in themselves are one of the most difficult from a moral point of view, in terms of emotionality and negativity on both sides, and when it comes to a child, the intensity of passions is aggravated; the trial is fraught with stress and stress for both parents.
At the same time, the successful conduct of any legal process, and even more so a family dispute, requires a balanced and well-grounded legal position. Emotions are not the best argument in court.
By entrusting the case to a competent family lawyer, you will save yourself from the need to participate in court hearings, and therefore from unwanted meetings with your opponent.
Parents' rights in relation to joint children
The family legislation of our country establishes for parents equal rights and equal responsibilities in relation to joint children (Article 61 of the Family Code of the Russian Federation).
This means that both parents have the same right to be involved in raising a child, to make decisions regarding all aspects of a child's life, his development, education, etc.
Of course, they also have an equal responsibility to support their child. A child's living with one of the parents does not mean the release of the other from the obligations imposed on him by law.
A parent living separately from a child has the right to:
- Communicate with the child
- Participate in raising a child
- Solve issues related to the education and other development of the child
At the same time, the second parent does not have the right to prevent him from doing so, otherwise the case may be brought to court.
The exception is cases when communication with a separate parent can harm the child, but such issues are also subject to clarification and proof in court.
According to the Family Code of the Russian Federation, not only the parent living separately is entitled to communicate with the child, but also Grandmothers and grandfathers a child from both sides, who, in the event of obstacles in communicating with their grandchildren, can independently go to court and set the time for meetings with their grandchildren.
Agreement on the procedure for communicating with the child of a separate parent
If parents nevertheless have disagreements about the time, the number of meetings with the child, as well as about solving other issues regarding the child's life, the first thing they can and should do is to discuss all the nuances in a peaceful and civilized manner and conclude written agreement on the procedure for exercising parental rights in relation to a child a parent who lives separately.
In the agreement, the parties can indicate any order they deem necessary and possible:
- Specific days in the week, and the amount of time (hours) when the parent can pick up the child (for a walk, etc.)
- Days (day) when the child spends at the place of residence of the second parent
- The number of days, weeks, or months during the vacation time that the child spends at the place of residence of the other parent
- The procedure for holding holidays, including the birthday of a child
- Other conditions as agreed between the parents
Freedom of contract (agreement) gives parents a lot of scope so that they could provide in a written agreement any conditions that would meet, first of all, the interests and needs of the child, and would also suit both parents.
Given that the law provides parents with such an opportunity, it is not worth bringing the case to court. First of all, it is necessary to make every effort for a peaceful settlement of the issue, and conclude an agreement on the procedure for communicating with the child.
If emotions and ambitions do not allow parents to sit down at the negotiating table, it is highly advisable to resort to the help of a lawyer, the lawyers of our Center are always ready to help you.
At the stage of pre-trial negotiations, the lawyer calmly and in accordance with the letter of the law will state your position to the ex-spouse, and discuss the version of the content of the agreement on the procedure for your communication with the child.
In the practice of our lawyers, cases of such pre-trial dispute resolution are not uncommon. Of course, everything depends on the mood of the other side, because people are different, and not everyone is able to objectively and adequately assess the situation and come to a mutual agreement.
If the parties cannot peacefully settle this issue and conclude a written agreement, then an appeal to the court remains.
As a rule, the initiator of the claim is the parent, who is hindered from communicating with the child. Less often - the parent living with the child applies to the court, such cases also take place in judicial practice.
When considering a case on determining the order of communication with a child, various aspects are taken into account:
- Child's age
- The health status of the child
- The mode and way of life of the child
- Attachment to both parents
- The moral and mental image of parents
- Other circumstances
Statement of claim on determining the procedure for communicating with a child
The trial to establish the time of meetings and the procedure for communicating with the child is carried out according to the rules of claim proceedings.
A claim to determine the order of communication of a child with a separate parent can be presented as being in a registered marriage, i.e. with the actual breakdown of the family, and after the divorce.
Of course the procedure for communicating with a child after a divorce becomes the subject of legal proceedings much more often.
In the statement of claim, the plaintiff offers a variant of the order of his communication with the child (children), and may ask to establish the days, hours, periods when he can freely spend time with the child, take him out for walks, take him home, etc.
It should be remembered that the age of the child is important when the court establishes the order of communication.
If the child is too young (under 3 years old), is breastfed, has diseases that require certain care, etc., the order of meetings, the frequency and amount of time for communication with the separately living parent will be established taking into account all these circumstances.
For example, if we are talking about a one-year-old child, the court is unlikely to determine the possibility of taking him to the second parent for several days a week. In this case, communication is possible for a certain number of hours per week, including with the presence of the mother.
Making up a claim to establish a procedure for communication between a child and a separate parent it is necessary to take into account the age of the child, i.e. from the outset, real demands should be made so that the court does not have to clarify them.
The court makes a decision taking into account all significant circumstances, and first of all is obliged to proceed from the interests of the child himself. Both parents must understand this.
Often, the parties come to peace already during the trial, and the judge urges them to do this, since he is obliged to take measures for the peaceful outcome of the case.
Settlement agreement on the procedure for communication with the child can be concluded at any stage of the trial, and even after the decision has been made by the court.
The guardianship and guardianship authorities are obligatory involved in the case, which give their written opinion on the merits of the dispute. Employees of the guardianship department travel to the child's place of residence to examine the living conditions at the address. Also, the guardianship authority at the place of residence of the plaintiff examines his living conditions.
Based on the results of inspections, communication with parents, and taking into account a number of other aspects, the guardianship authority provides the court with its written opinion regarding the possibility of determining the procedure for communication with the child declared by the plaintiff.
When a child reaches the age of 10, the law allows the court to conduct a conversation with him personally, i.e. hear during the trial, and take into account the opinion of the child (Article 57 of the Family Code of the Russian Federation). The child's opinion is not decisive, but is only taken into account by the court and taken into account when making a decision. The child is interviewed strictly in the presence of the teacher.
Before deciding whether to involve the child himself in the process, the court asks the opinion of the guardianship and guardianship authority, whether such an interview will harm the child's psyche, whether the presence of the court will have an adverse effect on him.
The Consequences of Failure to Execute a Court Decision on Determining the Procedure for Communicating with a Child
Failure to comply with a court decision on determining the procedure for communicating with a child can entail serious consequences - up to bringing to administrative responsibility.
In the event of a malicious failure to comply with such a decision, the court may transfer the child to the second parent, if he applies to the court with a request to determine the child's place of residence with him (clause 3 of article 66 of the Family Code of the Russian Federation).
Of course, such a decision is made based on the interests of the child, taking into account many factors, including the opinion of the child if he has reached the age of 10. However, establishing the fact of the parent's failure to comply with the court decision will be one of the main aspects when considering the case.
Changing the order of communication with the child
As already mentioned, the court decision on the establishment of the schedule of meetings and the procedure for the exercise of parental rights by the separately living parent is made taking into account the age of the child (children), as well as other significant circumstances.
This means that a change in any circumstances that formed the basis of the decision, and could, for example, be the reason for a reduced time for communication with a child, as well as an older age of a child, can cause a change in the established order of communication with a child.
To change the order of communication with the child, you must apply to the court with an appropriate claim, in which you can give all your arguments and justify the need to change the communication schedule.
Reasons for changing the order of communication with the child:
- Child's age change
- Restoring or increasing attachment to the parent
- Changing the baby's regimen (ending breastfeeding, treatment, etc.)
- Other circumstances
Which court to apply to: tribal and territorial jurisdiction
Civil cases for determining the order of communication with a child are to the jurisdiction of the district courts.
The statement of claim should be filed with the court of the district in which the defendant lives (registered at the place of residence).
An alternative to jurisdiction is possible only if the plaintiff is the parent with whom the minor child is located (those cases when the parent with whom the child lives wants to establish the time of meetings with the child of the second parent), while one of the requirements in the statement of claim is the dissolution marriage.
In other words, the plaintiff can choose jurisdiction only if two conditions are simultaneously present:
- The lawsuit claims the divorce
- The plaintiff has a minor child
In all other cases, the plaintiff's choice of jurisdiction for a claim to determine the order of meetings with a child is not provided, lawsuit to determine the order of communication with the child is filed strictly in the order of general jurisdiction - to the court at the place of residence of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation).
What documents should be attached to a claim on determining the procedure for communicating with a child
- Receipt of payment of state duty
- Copies of the claim for the defendant and the guardianship authorities
- Copy of the birth certificate of the child (children)
- A copy of the divorce certificate (if the marriage is dissolved)
- A copy of the marriage certificate (if the parties are married)
- Certificate of registration of the plaintiff and the child
- Characteristics of the plaintiff from the place of work (recommended)
Our family lawyers will provide the following services:
- Free legal advice by phone (the lawyer will answer general questions)
- Drafting of documents: statements of claim, statements to government agencies, responses and objections to a claim, complaints, petitions, challenges, etc.
- Assistance in collecting evidence
- Formation of the claim material and submission to court
- Full support of the case at all stages of court proceedings (first instance, appeal, cassation, the Supreme Court of the Russian Federation)
- Pre-trial settlement (mediation)
If you need assistance in drafting a claim based on your situation, please contact our Center. We employ lawyers with significant litigation experience in various types of family matters, including disputes about children.
An appointment with a lawyer on family disputes is made in advance for the near future, lawyers advise at the company's office located in the center of St. Petersburg.
Our advantages:
- Services are provided in St. Petersburg and the Leningrad Region (other regions of the Russian Federation as agreed)
- There are lawyers narrowly specialized in the field of family law
- Service quality guarantee
- Payment by installments for services
The document blank "Statement of Claim on Determining the Procedure for Communication between Father and Child" belongs to the heading "Statement of Claim". Save the link to the document on social networks or download it to your computer.
In the __________ city court of the _________ region
Address: _______________________
Plaintiff: _____________________________
Defendant: _____________________________
Address: _____________________________
Third party: Guardianship and guardianship authorities of the district
"_________" ____________ area
Address: _____________________________
STATEMENT OF CLAIM
on determining the order of communication between a parent and a minor child
The defendant, __________________, is the father of _________________ __________, b., Which is confirmed by the birth certificate of series II - IC number _______, issued by the _______ department of the Civil Registry Office of the Civil Registry Office __________ region __________ and ______________________ ________ year, which is confirmed by the birth certificate of the series I- IK number ______, issued by __________ by the Civil Registry Office of the Office of the Civil Registry Office _________ of the region __________
I am Plaintiff, _______________, I am ___________ and __________ a mother.
With my father ___________ and ___________ I was married, dissolved on ____________ by the decision of the magistrate court No. ___ ________ of the judicial district __________ region.
After the divorce, the children stayed with me and to the present time they live with me, are on my full financial support.
Currently, a dispute has arisen between me and the defendant regarding the procedure for communicating between the defendant and the children. I am not satisfied with the procedure established by the respondent for communicating with ____________ and _____________.
The father never took a significant part in the care of children, all issues related to ensuring good nutrition, personal hygiene, cultural development ____________ and __________ have always been and are in my charge.
The defendant can be terribly aggressive; in anger he often beat me (also in the presence of children). I am afraid to leave the children alone with my father unattended.
The defendant also repeated the phrase from the former mother-in-law to ___________ that the child was not loved and needed by her, I believe that this is psychological pressure on the child and it can negatively affect the mental development of the daughter.
Based on the above characteristics of the respondent, I consider it possible to establish the following order of communication between the respondent and the children: brief meetings on every Saturday of every month in my presence.
Clause 1 of Art. 61 of the RF IC provides that parents have equal rights and bear equal responsibilities in relation to their children (parental rights).
By virtue of Art. 63 of the RF IC, parents have the right and are obliged to educate their children. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.
Parents have priority over all other persons in the upbringing of their children.
According to Art. 66 of the RF IC, a parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues of the child's education.
The parent with whom the child lives should not interfere with the child's communication with the other parent, if such communication does not harm the child's physical and mental health, his moral development.
Parents have the right to conclude in writing an agreement on the procedure for the exercise of parental rights by a parent living separately from the child. If the parents cannot come to an agreement, the dispute is resolved by a court with the participation of the guardianship and guardianship authority at the request of the parents (one of them).
In view of the fact that it is impossible to reach an agreement on the procedure for communication between the defendant and minor children, I have to go to court with this claim.
Based on the foregoing, guided by Art. Art. 61, 63, 66 RF IC,
Determine the following order of communication between the defendant, _________________, with a minor daughter __________________ __________ b. and a minor son ______________________________ ____________ year of birth:
meetings with children every Saturday of every month from ___ hours ___ min. until ___ hours ___ min. taking into account the state of health of children and observing the daily routine and nutrition of the child in places intended for recreation with children, in the presence of the mother of children and by agreement with the mother of children.
APPLICATION:
copy of this statement of claim - 2 copies;
a copy of the divorce certificate - 3 copies;
copy of birth certificate ____________. - 3 copies;
copy of birth certificate ____________, - 3 copies;
copy of an extract from the house book - 3 copies;
receipt of payment of state duty.
"____" _______________ G. _____________/_____________/
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It is no secret that office work negatively affects both the physical and mental state of the employee. There are quite a few facts confirming both this and that. -
At work, each person spends a significant part of his life, so it is very important not only what he does, but also who he has to communicate with. -
Gossip in the work collective is quite common, and not only among women, as is commonly believed.
