Who the children will stay with after the divorce is decided by the court. According to the Family Code, both parents have equal rights to the child. However, the judge most often sides with the mother and leaves the minor with her. If a father wants to keep his son or daughter, he will have to prove that the child will be better off with him. The father must provide significant evidence to support his words. It is very difficult to win a case on your own, so we recommend that you seek help from a specialist.
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Content
1. Equality of rights for both parents
2. What is the likelihood of the child being sued from the mother?
3. Procedure to take a child away from the mother through the court
4. Statement of claim and package of documents
5. Where is the claim filed?
According to statistics, in our country, for every nine single mothers, there is one father who is raising a child without a mother. Based on these figures, we can say that the judicial system fundamentally leaves children to be raised by their mother. In addition, not every father strives to fully support and raise the child alone. It is easier to leave the child to the mother and provide financial assistance for the maintenance of the children, limiting the father’s debt to the financial side of the issue.
Despite this, fathers often turn to judicial institutions to take their child away from their spouse. Why do men seek to sue their mother’s children when a marriage is dissolved? The motives are as follows:
- Strong feelings for the child . A father's strong love often becomes the reason for taking the child with him. Many dads want to take care of their child, as well as educate and socialize the minor.
- Security . There are different types of mothers - some take care of children, give themselves completely to the family. But there are mothers who lead ugly and antisocial lives, drink or take drugs. Such a woman’s life activity increases the risks of physical and emotional ill health of the child. In such situations, it is better for children to live with their fathers.
- Feeling of revenge . The father's goal is to annoy his ex-wife and separate him from his child. To hurt, bring suffering and morally destroy a woman becomes the only goal of an abandoned man. In this situation, the interests of children fade into the background.
Often, when a family breaks up, it is better for children to stay with their mother.
In addition, a father who loves a child and wishes him a prosperous life will not deliberately interrupt the child-maternal bond. Not a single woman will put up barriers to a caring and loving father who is interested in the socialization and maintenance of the child. But practice varies. Not every mother provides the physical, moral, psychological and creative education of the child that a father can provide. Therefore, the interests of children can be defended by going to court. How to sue a woman for a child if his interests are infringed?
What does the court pay attention to?
There are several factors that courts consider when deciding whether to release a child to the father or not.
For example, the material and property status of a man is examined, whether he has a permanent or temporary income. The composition of the new family is taken into account. After all, other people can live in the parent’s living space.
When the father decides to take the child, he must take care of evidence that the mother cannot devote proper attention to his upbringing. Facts confirming the threat to the life and health of the child while being with the mother will also be important.
Such evidence includes:
- information from the guardianship authority;
- testimony from the woman's neighbors;
- other materials obtained through legitimate means.
Judges also take into account the period of existence of the marriage. After all, a fleeting union from a subjective point of view may not work in a man’s favor. At the same time, the attention given to the child is taken into account. However, everything must be supported by evidence.
Equality of rights for both parents
International and domestic law establishes the equality of mothers and fathers in the upbringing and maintenance of joint children. In other words, neither mom nor dad have privileges in the performance of their duties. Equally, parents should:
- Know about your child's health.
- Take part in the life of children.
- Engage in raising a child.
- Perform functions of education, upbringing and socialization of children.
- When living in different places, no one should interfere with meetings with children.
- Represent interests in government agencies.
Regardless of any circumstances (personal hostility towards the spouse, living separately from each other, etc.), family law assigns the father the obligation to take part in the life of the children on an equal basis with the mother.
Can a husband and wife completely take away parental rights?
Only a court can deprive the second parent of the right to participate in the children’s lives. Such a decision may be made when depriving a father or mother of parental rights. In this case, the obligation to pay child support will remain with the parent, but his rights will be taken away.
Reasons
In order for a husband or wife to completely remove children from the other spouse, compelling reasons are needed. These, in accordance with Article 69 of the RF IC, are:
- Voluntary non-participation in the lives of children for a long time. This implies not only a lack of meetings, but also evasion of alimony payments.
- Child abuse. Application of physical, moral or mental violence to him.
- Immoral behavior of the parent, which consists of drinking and/or drug use, etc.
- A crime committed against children or another family member.
Any stated basis must be proven by documentation or testimony.
What is the likelihood of the child being sued from the mother?
Despite the legislative enshrinement of equal rights to the children of mother and father, it is not stated anywhere which of the former spouses the children should live with. The resolution of these problems is entrusted to judicial institutions. The judge carefully examines the case materials and the relationship between parents and children. For example, the judge studies:
- Financial position . Will the mother or father be able to provide a quality standard of living, what are the living conditions, will there be any difficulties in meeting the needs for food, leisure, clothing and rest.
- Lifestyle of mom and dad from a social-normative point of view. Character, preferences, range of interests, inclinations, etc. are subject to study. That is, everything that influences the development of a minor’s personality.
- Degree of attachment . According to the law, the court can take into account the child’s wishes - which parent he wants to live with.
- Physical and psycho-emotional state of health . Can a parent provide care, education and socialization until the age of eighteen?
Based on the above, if you want to deprive your ex-wife of a child, you will have to prepare well:
- From a moral point of view, take care of your reputation. Stop your wild lifestyle, do not drink large quantities of alcohol and quit smoking. It is worth looking at yourself from the outside and starting to avoid rudeness, obscene language and scandals. Make a good impression on your neighbors, teachers or educators, and work colleagues.
- From a financial point of view, you can change a job that brings more income or find a part-time job. Take care of the child’s social and living conditions. They must meet all the children's needs. The house must have heating, electricity, household items and electrical equipment, water supply and sewerage.
- Take care of your health. You can undergo a medical examination and receive a doctor's opinion about the absence of severe diseases or those that pose a danger to the child.
Enlist your child's support. According to the law, the court takes into account the opinion of children who have reached the age of ten. However, you must understand the full responsibility of this action. You can buy a child’s affection with toys and sweets, but subsequently you must take part in the child’s life, engage in upbringing and education. In addition, the judge analyzes not only the child’s wishes, but also real acts of caring - accompanying him to classes, clubs, degree of participation in life, etc.
Advice on how to behave for a father who wants to fight
Based on the practice of resolving issues of children living with their father, several basic tips can be identified, following which he is likely to achieve a positive verdict in his favor.
Tip 1: Gather all the necessary documents
The documentation submitted to the court must confirm all the benefits that will apply to the child if he lives with the father. The papers may indicate a high material income, the presence of comfortable housing, the father’s absence of diseases or addictions, etc. The more complete the list of documents, the greater the chances of success.
Tip 2: establish contact with guardianship authorities
Guardianship authority is an institution directly involved in considering issues of the well-being of minor citizens. Contact with an authorized representative of this department, as well as sending all supporting evidence to him, will have a positive impact on the outcome of the case.
It is advisable to call a guardianship commission to the place of residence of the mother and children to assess the living conditions and financial situation.
Tip 3: file a claim to determine the child’s place of residence
Such a claim can be filed in court after a decision has been made to leave the children with their mother. The subject of the request is a request to review the verdict. In this case, any request must be documented. The court is obliged to consider such a request, regardless of the outcome of the previous proceedings.
Tip 4: Gather evidence of your own involvement in raising your child
If the father continues to participate in the child's life despite the fact that he lives with the mother, it is necessary to collect and present evidence of this fact. Confirmation can be checks and receipts indicating the purchase of clothes, toys and household items for the child.
It is better to make financial support through electronic payment systems. They contain a transaction history that may provide evidence that the father provided financially for the children.
Audio and video materials, as well as testimony of third parties, for example, teachers, educators, neighbors, are accepted as evidence.
Tip 5: Aim for a signed agreement
Significantly simplifying the entire procedure will help draw up an individual agreement. Such an agreement can be drawn up by the spouses independently. On its basis, the father may be able to live with the child periodically or permanently.
If the mother subsequently wants to limit the children's contact with the father, the agreement can be used in court as an argument to refute her wishes.
Tip 6: Get qualified legal support
An additional guarantee of success in proceedings regarding children can be the support of a qualified lawyer. He will help collect all the necessary papers, point out the missing links in the case, and will be able to speak in court on behalf of the father.
When using the services of a legal representative, his authority should be confirmed with an appropriate power of attorney. This is mandatory for the court
Tip 7: Maintain regular contact with your child
The child’s relationship with his father is also important. If he has reached the age of consent, then his opinion can be taken into account by the court. In order for a child to be loyal to the issue of living with his father, it is necessary to fully participate in his life. To do this you need to establish good contact with him.
You should avoid putting pressure on the child. If this fact is revealed during the proceedings or after it, the decision may be annulled and the father will be held accountable.
Procedure to take a child away from its mother through court
In order for the child to remain with you during a divorce, it will take a lot of time and resources. Please be patient and persevere as the legal process can drag on for months. To seize a child from a woman, the father must:
- File a claim for divorce.
- Include in the claim requirements to determine the place of residence of children. The claim can also include the collection of child support, or it can be filed as a separate claim.
- Pay the state fee.
- Carefully consider the arguments, draw up a line of defense, prepare all documents to support the claims, and enlist the support of witnesses.
- Take personal part in court hearings.
- Get the judge's decision.
If you want to end the legal process in your favor, you should take advantage of free online divorce consultation at every step of the procedure - from filing a claim to appealing a court decision.
The role of a lawyer in divorce proceedings
In order to prevent the father from taking his son or daughter away after a divorce, it is necessary to persuade the husband to go to a lawyer. He can become a mediator in reaching an agreement between spouses. The purpose of mediation is to reduce conflict and attempt to resolve disputes amicably.
The desire to get a divorce is often a necessity, since a man and a woman should not live in stress and disagreement. But we must remember that in such a situation, children suffer no less than their parents, so it is better for adults to make every effort to agree on a further peaceful life for the children. This will be the best decision.
Statement of claim and package of documents
The statement of claim must be drawn up correctly and clearly. The structure of the claim must contain:
- Name of the court.
- Information about parents - full name, registration address, contact details.
- Information about the child - full name, date of birth and registration address.
- Documentary evidence of the conclusion and dissolution of marriage relations.
- Formulation and arguments for the plaintiff's claims.
- Reference to regulatory legal acts that confirm the validity of the stated requirements.
- Documentary evidence provided.
- List of attached documentation and applications.
- Formulated demands of the plaintiff.
- The date on which the claim was filed and signed by the plaintiff.
The following package of documents must be attached along with the application:
- Passport.
- Information from the Housing Office about the place of registration.
- Documents confirming the entry and termination of marriage.
- Child's birth certificate.
- Document 2NDFL.
- Statements of personal accounts in banking institutions.
- Acts on inspection of social and living conditions.
- Documentation for the father's right to use real estate.
- Information about social benefits.
- Application from the place of employment, references from friends, relatives, teachers or teaching staff of the child’s school.
- Doctors' reports on the father's health status, issued at a medical institution (confirm that the plaintiff does not have addictions, serious illnesses or mental disorders).
- Other documentation.
It is worth noting that you can attach to the claim not only confirmation of your positive aspects, but also documentary arguments for your demands to sue the child from the mother. For example, you can provide:
- Medical statements about the presence of dangerous diseases, mental disorders and addictions in the mother.
- Testimony of witnesses about the mother's antisocial life.
- Documents related to being brought to the police, control of POiP, placement in psychoneurological and drug treatment institutions, detention in the penitentiary system.
- Documentary evidence confirming addictions (gambling addiction, shopping, clubbing, nymphomania, etc.).
The courtroom is not a platform for throwing mud at your ex-wife. When providing evidence, be as correct and respectful as possible to the mother of your child. Your arguments should not be based on abuse and insults, but on real evidence.
What evidence can you use?
Before filing a claim and starting legal proceedings, the plaintiff (in this case, the father) will need to stock up on evidence confirming the reality of the reasons why the child should be left with him.
It can be:
- Medical certificates and reports. In particular, from a psychoneurological dispensary or a drug dispensary where the mother is registered.
- A certificate from the local police officer indicating the unlawful behavior of the parent.
- Witness's testimonies. Information provided by eyewitnesses can confirm, for example, the fact that a child is alone all day long or prove that a woman constantly shouts at a minor, raises her hand at him, etc.
The collection of evidence should be approached extremely responsibly, especially when it comes to depriving a mother of her rights to a child. Documents must be authentic, just like witness statements.
Where should the claim be filed?
Conflicts related to the place of residence of a child during a divorce are considered by city and district courts. The statement of claim is filed at the place of registration of the defendant or at the place of residence of the applicant, provided that the child lives with him.
It is worth noting that court hearings concerning the interests of children will not take place without representatives of the Public Educational Inspectorate. In addition, specialists with psychological and psychiatric education or teachers may be involved to clarify the details of the case and circumstances. This is required to find out the child’s wishes - with whom he wants to live. The conversation takes place either in the meeting room or in a calm environment without parental pressure.
As a conclusion, we note that the opinion of children who have reached the age of ten can become decisive for the court. Even experienced judges may have doubts about the placement of a child. And in this case, it is better to first ask a lawyer for free to build the correct line of defense and argumentation. Therefore, taking a child away from an ex-wife through the court is not an easy task, requiring careful preparation and the participation of competent specialists.
Who will help if the foreigner husband took the child abroad?
In most cases, taking a child abroad by a foreign parent is problematic. This is due to the fact that in order to transport children across the border by one of the parents, you must have the written consent of the second or another permit.
If such consent was not given, and the child was taken abroad, it is necessary to contact law enforcement agencies with a corresponding statement, since such an act will no longer be considered from the point of view of separation of children, but as the illegal removal of a minor from the state.
When submitting a petition, it is necessary to accompany it with all supporting documents and other materials that will help representatives of the regulatory agency take action to resolve the issue within the framework of international cooperation.
