As a rule, ex-husband and wife face many disagreements, including financial, housing, and others. Probably the most difficult of these is the question of which party the child will live with.
Such disputes are settled in court. What are the specifics of the procedure and how great are the father’s chances of achieving cohabitation with the child?
What does the law say?
Questions about the cohabitation of a child after a break in relations between spouses are regulated by the Family Code. The Insurance Code contains a provision that ex-husband and wife have equal rights and obligations in relation to the child.
Among them are the following:
- child education;
- the opportunity to spend time with the child when living separately;
- taking part in the child’s life;
- receive information regarding the child’s health, education and needs;
- represent the interests of a minor child in the judiciary and other government agencies.
The Declaration of the Rights of the Child and judicial practice demonstrate that in most cases a minor citizen remains to live with his mother.
However, legal norms are not categorical; the declaration contains provisions that priority in living together with a child is given to the party that can create more comfortable conditions for the development, education and recreation of a minor child.
Can a father sue a child from his mother during a divorce?
Legislative norms provide for the principle of equality between parents in relation to raising a child. Responsibility for regulating such disputes lies with the judiciary.
Many factors influence the court's decision.
- addictions of the ex-wife, for example, alcoholism, drug addiction, etc.;
- the presence of psychological illnesses in the mother of the child;
- the mother is not interested in the child’s life, for example, she often leaves the child alone or with strangers;
- the child expresses a desire to live with his father.
Grounds for depriving a mother of parental rights
In accordance with the Family Code of the Russian Federation, judicial authorities have the right to deprive the mother of parental rights.
Among the reasons for carrying out the procedure, the following should be highlighted:
- dishonest fulfillment of parental obligations;
Note. The parent is obliged to take part in the upbringing of the child, create conditions for general education and normal development, and protect the rights and interests of the child. If parental obligations are ignored, the mother risks losing her rights to the child.
- refusal to pick up a child from a medical institution, kindergarten, schools, organizations for the social protection of children;
- abuse of minor children;
- abuse of parental rights;
- bad habits: alcoholism, drug addiction;
- committing a deliberate crime against a child and his father.
Deprivation of rights to a child is also possible in cases where living with a parent for reasons beyond his control poses a danger for a minor citizen. Examples include cases where the mother suffers from serious psychological illnesses.
Registration procedure
The procedure for depriving a mother of parental rights in favor of the child’s father is impossible without the participation of the judiciary.
The father of the child must adhere to the following algorithm of actions:
- filing a claim for the child to live with the father;
Note. The statement of claim must be filed in the district court at the defendant’s place of residence. Filing a claim at the place of residence of the applicant is possible if the issue of deprivation of parental rights and collection of alimony is simultaneously regulated.
- payment of state duty;
- taking part in legal proceedings;
- provision of documents, testimony and other arguments confirming the impossibility of a minor citizen living with his mother;
- obtaining a decision from the judicial authorities regarding the further residence of the child with one of the parents.
Statement of claim
The judicial authorities consider only those that are made according to the established model. Violation of the rules for filling out and filing a claim may become an obstacle to opening a lawsuit.
A properly completed document must contain the following information::
- name of the judicial authority;
- information about the applicant and respondent (full name, place of residence, contact telephone number);
- information about marriage and divorce;
- information about the child (full name, date of birth, etc.);
- arguments for removing the child;
- requirements for judicial authorities;
Note. The statement of claim must contain information about the requirements to the court. In this case we're talking about on determining the place of residence of a minor citizen, collecting alimony from the mother to support the child and establishing the procedure for communication between the mother and the child.
- list of additional documents;
- date and signature of the applicant.
Additional Documentation
When filing a claim, a citizen must prepare a package of additional documentation.
The main purpose of the documents is to confirm the father’s high moral character, financial independence and ability to fully raise the child.
Among the list of documents it is necessary to highlight the following:
- passport;
- divorce certificate;
- child's birth certificate;
- income certificate;
- characteristics from friends, neighbors and place of employment;
- statements of accounts of banking institutions;
- documentation confirming the availability of movable and immovable property;
- living conditions inspection report;
- a medical certificate confirming the absence of bad habits, psychological diseases, etc.
Note. During legal proceedings, it is unacceptable to provide false information, sort things out, or use abuse or insults. A citizen risks facing criminal liability for providing false information.
Proof
As practice has shown, it is difficult for citizens to convince judicial authorities of the need for a child to live permanently with his father.
One statement of claim is not enough. The father will have to certify to the court that the child will be better off with his father than with his mother and that the former will be able to create Better conditions for education, recreation and development of the child.
For a positive decision by the judicial authorities, the applicant needs to prepare additional evidence, which may include the following:
- Negative characteristics about the ex-spouse from uninterested persons, for example, neighbors, teachers, etc.
- Evidence that the ex-wife has bad habits that interfere with the normal upbringing of the child, for example, drug addiction, gambling addiction, etc.
- Documentation confirming that the child’s mother has psychological or other illnesses that impede the upbringing of a minor citizen.
- Child's testimony about improper or aggressive behavior mother.
Video: In what cases
What factors influence the court's decision?
Despite the fact that both parents have equal rights to the child, the judicial authorities, in most cases, leave the minor citizen with the mother.
The court's decision is influenced by many factors that the father needs to know in order to win the rights to the child.Among them are the following:
- Personal qualities of parents. When considering a claim, the court pays attention to the reputation of each party. The court is interested in feedback about parents from strangers, for example, neighbors, colleagues, teachers, etc.
- Financial position. The factor is important, but not decisive since, if necessary, the more financially secure parent will pay child support.
- Availability of living space. The full development of the child is the main factor in resolving legal proceedings. A parent who cannot provide a minor citizen with normal living conditions will lose the court case.
- Child's opinion. Judicial authorities must take into account the opinion of a child over 10 years of age. The court has the right to ignore the opinion of children under 10 years of age.
- Health status. When considering a claim, the physical and psychological state of health of each party is taken into account. A parent with serious illnesses will not be able to count on living together with the child.
- Other reasons. The judicial authorities will take into account any reasons that can convince them of the impossibility of the full development of the child while living together with the defendant. Eg, alcohol addiction is a serious obstacle to raising a child.
Thus, parents, in accordance with the RF IC, have equal rights to the child. Disputes about where the child will live after the parents’ divorce are regulated in the courts.
As practice has shown, the court gives preference to mothers in matters regarding the further residence of a minor citizen. The father will be able to achieve cohabitation with the child only if there are serious factors confirming the impossibility of the ex-wife to create conditions for the full development of the child.
Tell me, under what conditions can a father sue a child from his mother during a divorce?
- If his position is more favorable in the opinion of the court. Everything is very subjective!!!
- In practice, the chances increase significantly if you immediately take the child from mother to father, create all the conditions for the child: a sleeping place, furniture, activities in clubs, go to children's performances and save tickets, grandmother's care, etc., the more, the better . All this will be recorded by the guardianship authorities and confirmed in court. Record all the mistakes and shortcomings of your wife. Before filing a lawsuit, prepare as many documents as possible in secret from the mother; surprise is a plus. The father's income should be higher than that of the mother.
- "A slave's children could be taken away from him without asking his consent; men could have their own children taken away from them without asking their consent."
Warren Farrell
Constitution of Russia.Article 38
2. Caring for children and raising them is an equal right and responsibility of parents.Family Code of Russia.
Article 31
2. Issues of motherhood, paternity, upbringing, education of children and other issues of family life are resolved by spouses jointly based on the principle of equality of spouses.Article 61
1. Parents have equal rights and bear equal responsibilities in relation to their children (parental rights).As you can see, the rights of men to equal and full participation in the lives of their children are fully confirmed by both the Constitution and the Family Code of Russia. THEREFORE, the practice of transferring children ONLY to mothers is ILLEGAL and nothing more than a violation of Russian legislation, a violation of the rights of fathers (and children too!), in other words, arbitrariness.
HENCE!
The fight of fathers for their rights is justified and necessary! !That is, if you hire a lawyer, then through the court it is possible to leave the child to the father, even if not through the first, but through the second or third
- The Family Code confirms this. that both parents have equal rights. divorce is always carried out through the court if there are minor children in the family...
The court determines the place of residence of the children. .
As a rule, parents do not argue; it is implied that the children stay with their mother...
But if a dispute arises, it is resolved with the participation of the guardianship and trusteeship authorities...
The guardianship and trusteeship authorities study living conditions and, if necessary, involve a psychologist... Their task is to prepare their conclusion for the court. .
Art. 65 of the Family Code determines what parameters are considered when determining the child’s place of residence...
This includes emotional attachment and opportunities for raising and educating children...
Art. 57 determines that the opinion of a child over 10 years of age is decisive... - If the mother leads an immoral lifestyle and cannot raise the child. If she doesn't work and can't provide for the child. But all this must be proven
- 1. If the mother is incapacitated (i.e. mentally ill)
2. If he cannot provide for the child financially
3. In the absence of normal housing
4. Immoral lifestyle (drugs, alcohol, prostitution)
5. - In the absence of an agreement on determining the place of residence, the dispute between the parents is resolved by the court based on the interests of the children and taking into account the opinions of the children. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of the parents , financial and marital status of the parents, etc.) (Article 65 of the RF IC) In the absence of an agreement on determining the place of residence, the dispute between the parents is resolved by the court based on the interests of the children and taking into account the opinions of the children. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of the parents , financial and marital status of parents, etc.) (Article 65 of the RF IC)
- If the child’s mother leads an immoral lifestyle, drinks alcohol, drugs, does not look after the child, leaves the child alone, and does not fulfill parental responsibilities. With such a claim, third parties will be involved, this is the guardianship and trusteeship body, which will check the financial situation of the child’s parents, living conditions, look at the parents’ work schedule, if the child has a separate sleeping place in the apartment, a table for studying, a place for games, the child’s affection to the parents, then submits a conclusion to the court, and the court, having studied everything, makes a court decision, but as a rule, the children are left with their mother.
- Because our courts do not care at all about the law in this matter and each judge has his own code. then they usually leave the children to the mother, even if she is an alcoholic drug addict and lives in a half-burnt-out apartment, and she only needs the child to receive child support for the next dose or portion of alcohol.
Therefore, the answer is simple - if he has money, then they will take it from a normal mother. - ...if he proves that leaving with the mother is dangerous for the child's living conditions. characterization of the mother (immoral, alcoholic, etc.), then the court can go over to his side, support him in his request and the place of residence after the divorce can become “with the father”.... Then he can continue the judicial action and deprivation rights to a child...
- If the mother is unable to raise the child, or she beat him and there is evidence of this
With the question “How to sue a child from your wife?” faces some men after divorce. True, it is somehow not customary to talk about this in our country (it is even considered something almost criminal), but the termination of a marriage relationship should not mean the end of communication with a child. And mothers, frankly speaking, are different. Therefore, if you think that your child will be better off with you, then this article is for you.
Is it possible to sue a child from your ex-wife?
Before answering the question of how to sue a child from a wife, I would like to warn those men who fight for children solely in order to annoy their ex-wife. The children are not to blame for the fact that life between you and their mother did not work out, and they should not be held responsible for your mistakes.
If you do this out of good intentions, that is, sincerely believing that it would be better for your child to live with you, then let’s figure out how to sue a child from your wife and whether this can be done at all.
Don't know your rights?
For a long time, judicial practice has shown that it is possible to seize a child from the mother only if she has practically no means of subsistence or leads an immoral lifestyle. Today, this trend has changed: the courts have finally recognized the equal rights of the father and mother in determining the place of residence of the child.
Therefore, if you are determined to keep your child with you after the divorce, you must make your desire known during the divorce process. Indeed, if there is a child in the family or there is joint property that the spouses could not divide peacefully, the dispute is resolved by the court. It is at this stage that you need to declare your rights to the child, and also indicate for what reasons you believe that your child should have a place of residence with you and not with his mother. It is important to say that the court decision, even if it was not made in your favor, can subsequently be appealed (either in full or in part) to a higher judicial authority.
What does the court pay attention to?
So, we have figured out in general terms how to sue a child from his wife, but we should not forget that the child’s right to live with his mother is enshrined in the Declaration of the Rights of the Child. Restriction of this right is possible only in order to comply with another principle of this declaration, which requires that the child be raised under proper moral and material conditions and have opportunities for development, play and education.
Thus, the court, acting in the interests of the child, must evaluate the following qualities of the parents:
- Moral character and physical health. Here we are talking about the lifestyle of both parents, their ability to raise a worthy citizen of the country, as well as physical characteristics to ensure proper care and normal functioning of the child.
- Financial situation. Everything is very clear here: in order to provide a child with everything necessary, funds are certainly needed.
- Provision of housing and other conditions necessary for organizing the proper maintenance of the child, providing him with the necessary space and everything necessary for normal development and maturation.
- Other circumstances that affect (or may affect) the child’s quality of life.
According to the Family Code Russian Federation Divorce in the case of a minor child takes place in the courtroom. Based on Art. 24 of the Family Code of the Russian Federation, the court determines which parent the child will remain with if disagreements arise.
In many cases, the baby stays with the mother, but the baby can also be left with the father. Many questions arise about how to take a child from the mother to the father after a divorce and what is needed for this.
Can a father take his child after a divorce?
When spouses decide to divorce, they often cannot divide the children among themselves. According to the legislation of the Russian Federation, both husband and wife have equal rights to a common child, and therefore to his custody.
Reasons why the father wants to take his son/daughter away from his wife:
- Love. Some fathers want to raise their child and be with him constantly.
- Revenge. Often, in order to take revenge on his ex-wife, a man wants to take away her child, thereby causing her pain.
- To protect your child. In cases where the mother is unable to raise the child, the father may wish to do so alone.
The main factor influencing the bailiff's decision is the well-being of the child. In this case, the opinion of a minor is also taken into account if he has reached the age of 10. Often, child psychologists are involved in the trial to find out from the child who he really wants to stay with. This meeting takes place in the courtroom without pressure from both spouses on their child, since the separation of parents is often a real shock for the child and often affects the child’s body negatively.
“Division” of a minor between parents
It is quite possible that a man can take a child away from his wife with the help of money and the use of physical force. These actions are contrary to the laws of Russia and may also entail administrative and even criminal liability. So how can you sue your wife for a child during a divorce without violating state law?
First, you need to understand the rights of a father to his son and (or) daughter according to the Family Code of the Russian Federation.
Husband's rights to a child under the UK
What rights does the father have when the marriage is dissolved and the minor remains with the mother? According to the Family Code of the Russian Federation, a man has every right to:
- Permission or refusal in case of changing the child's surname. A woman cannot change the surname of a minor without the consent of her ex-husband.
- Making a decision about a child’s departure to another state, even if he is going there for the purpose of recreation or study. The mother also does not have the right to take the minor to another country if she decides to move. The documents must have the signatures of both parents.
- Participation in the child’s life (for example, when choosing an educational institution, the father must also give his consent or offer his options).
- Know interesting information about your offspring.
- See your child at any time.
Family Code of the Russian Federation
Important! If the mother is against communication between her ex-spouse and his heir, she may be deprived of parental rights and the child may be transferred to the father. But at the same time ex-husband has no right to take the baby away from the mother by force.
In what case can a spouse take a child from the mother?
The father has every right to assign the children to himself if:
- the mother is an alcoholic or drug addict;
- the spouse suffers from mental illness;
- the mother is not interested in her own baby and treats him poorly;
- a woman uses children for her own purposes (begging, vagrancy);
- the minor himself wishes to stay with his father.
Note! In court, it will be necessary to provide all evidence and certificates confirming the existence of these problems. I can also call witnesses into the courtroom who can confirm the mother’s unlawful actions towards the child.
The baby stays with his father
If the mother takes care of her children and leads a normal life, the minor can still be awarded to the father. The bailiff pays attention to the characteristics of both parents and their financial situation. A male parent will have a better chance of taking a child away from his mother if he works in a good position and receives a high, stable income, and is also able to give him a good education, provide him with excellent housing and provide all the factors for full development.
How to sue a child from your wife during a divorce
How to sue a wife for a child is a rather difficult question, but knowing the course of action, it will not be as difficult as it seems at first glance.
- First you need to draw up a statement of claim and present it in court.
- Then the place of residence of the minor must be established. If the child’s place of residence has not been established, then the plaintiff has the right to submit an application that the child will live with him. If the child lives with his mother, the father can appeal this decision and re-file the claim.
- The next stage is to prepare a package of necessary papers and collect all the necessary certificates.
- The parent must also ensure that there are witnesses.
- In addition to all this, the citizen is obliged to pay the state fee and provide evidence of payment in the form of a receipt.
In such cases, it is best to contact family lawyers, because the process of breaking a marriage takes place not within the walls of the registry office, but in court.
Note! If the divorce took place due to abuse of his wife and child, then the man will not be able to take custody of the minor.
How to file a claim
The statement of claim must cover the following points:
- The name of the court in which the trial is taking place.
- All information about the plaintiff and defendant, that is, father and mother (full name, place of residence, place of work, etc.).
- Information about marriage and divorce.
- Information about the minor (full name, date of birth, place of residence).
- Describe all the reasons why the father takes the child from the mother.
- Links to evidence.
- Links to laws that support these reasons.
- Provide a list of applications.
- Specify the exact date filing a claim.
- Apply your personal signature.
The following documents must be attached to this application:
- passport (original and copy);
- documents confirming the conclusion and separation of marriage;
- birth certificate of a minor;
- certificate from the housing office about place of residence;
- father's salary certificate;
- Bank statements;
- documents confirming the spouse’s ownership of real estate and other property;
- confirmation of survey of living conditions;
- medical certificates proving that the plaintiff does not have serious illnesses and does not use alcohol or drugs;
- characteristics from the place of residence and work;
- other documents.
Statement of claim to court
The father must provide a complete list of papers and certificates confirming his ability to provide and raise his offspring. The court's decision directly depends on what strong arguments the plaintiff provides against the child's mother. It is very important that all documents are authentic and comply with the laws of the Russian Federation.
Judicial practice in such cases
So, can a father take a child from his mother during a divorce according to judicial practice? Having figured out the father’s motive for taking the child from the mother and checking all the necessary data, maybe. If the bailiff, based on all the arguments and evidence provided, considers that the child would be better off with his father, then the decision will be approved.
There is not a single example where a child remains under the care of a man. An analysis of trials showed that about 60% of cases ended in approval in favor of the minor's father. But when the mother decides to send the minor back to justice, the court makes a decision in her favor 80%.
The court's decision
A certain number of divorces and child divisions occur peacefully and a series of agreements are concluded that suit both husband and wife. There are also cases where the case was dismissed due to the spouse’s failure to appear in court.
Justice authorities also in 2% of cases separate children between parents after breaking family ties (for example, son-father, daughter-mother).
So, thinking about the question of how to take my son away from ex-wife, it is worth weighing this decision carefully. After all, as practice shows, children are not always happy without maternal care and affection.
