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Determining the place of residence of children after parental divorce. Establishing the place of residence of a child in the event of a divorce of parents. What documents will need to be attached to the claim?

25.04.2024 -
Psychology

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When the spouses have decided to divorce, on the agenda, in addition to the issue of division of acquired property, will be the question of who the children under the age of 18 will live with - with their mother or with their father.

Despite the fact that divorce in the presence of children is carried out in the magistrate’s court, the application related to determining the child’s place of residence is considered only by the district court due to its increased complexity and significance for the interests of the minor.

In this article we will look in detail at the features of filing a claim and the algorithm for resolving the issue out of court.

When is it necessary to determine a child’s place of residence?

Divorce is a reality that couples face. The divorce procedure becomes much more complicated when a couple has minor children together and if the spouses cannot agree on who they will live with after the divorce.

Upon termination of the marriage relationship, it is necessary to determine the place of further residence of the child in order to ensure the most complete and effective upbringing and development of the minor.

The legislator has provided 2 options for resolving the problem of determining the place of residence:

  • Pre-trial: by drawing up an agreement between the spouses or reaching an oral agreement declared to the court during a divorce;
  • Judicial: in the absence of compromise

But there are situations when it is not necessary to determine the place of residence during a divorce. We are talking about the following situations when the second spouse:

  • deprived of parental rights;
  • died;
  • declared missing or deprived of legal capacity on the basis of a court decision;
  • sentenced to a term of three years or more in prison.

In this case, the divorce is formalized in the registry office, and the child remains to live with the parent with whom he lived before the divorce.

Agreement on children and their place of residence

The legislator in Articles 23 and 24 of the RF IC gives parents the right to resolve the issue of the place of residence of minor children peacefully, without going to court, by concluding an agreement on children.

The document can be signed in 2 forms (to choose from):

  1. Simple written form - the text can be prepared independently or with the participation of a specialist, but the document is signed only by the parents. As such, it has no force, unless the spouses in court during a divorce confirm their agreement with the terms of this document.
  2. Agreement on children, certified by a notary. Such a document takes on legal force comparable to a court decision and the spouses have the right to demand forced execution of the terms of the specified agreement.

The text of the agreement specifies the place of residence of the minor and the accompanying conditions, for example, the time the second parent communicates with him, financial support, etc.

The law does not restrict the parties to a marriage relationship from including additional clauses in the document, but it should be remembered that its main purpose is to take into account the interests of the child and in case of a gross violation of the rights of a minor or conditions that are obviously unfavorable for him, the agreement can be challenged in court.

If the spouse does not agree with the child’s place of residence

If one of the spouses does not want to enter into an agreement on children or does not agree with which option is set out in the text, he has the right not to sign the document. The second spouse also has no right to oblige him. In this case, the parties can negotiate and consider other options for interaction.

If consensus cannot be reached, the only option to resolve the problem will be to go to court to resolve the dispute about the children.

Determining the child’s place of residence through the court

If the parents do not come to a consensus on the issues of raising children and the place of their further residence after the divorce, then the issue of determining the child’s place of residence will be decided by the district court.

Regardless of who initiates the appeal - the father or mother, when considering the case, the judge will take into account the interests of the child, first of all.

When deciding on the issue of children, a representative of the guardianship authority must be present in court to give an opinion on the case.

IMPORTANT: The parties may file a petition to determine the place of residence of the child at the time of consideration of the divorce case in court, even if such requirements were not stated initially.

Jurisdiction

All cases related to determining the place where a minor citizen will live after a divorce are considered only in the district court. The claim is filed at the place of residence of the defendant, and if it is unknown, at the location of his property or at the last known place of residence.

However, alternative jurisdiction is allowed: If the child lives with the applicant, then he has the right to take the claim to the district court at his place of residence.

Statement

The statement of claim to determine the place of residence of the child is drawn up in writing, sent to the court in copies according to the number of persons participating in the case, and includes the following provisions:

  1. The header indicates the name of the court and its address. Next comes information about the plaintiff and defendant, their place of residence and contact telephone number.
  2. The text of the claim must indicate the circumstances of the case (data about the marriage, divorce of the spouses, with whom the child currently lives).
  3. The applicant gives reasons why the minor should live with him (there is an apartment, a permanent income, the school is located next to the house, negative characteristics of the second parent, etc.).
  4. Indicate the stated requirements.
  5. Date and signature.
  6. List of attachments to the claim

The sample below contains combined requests for divorce and determination of child residence.

All necessary documents are attached to the claim, after which it is submitted to the court. You can do this in 3 ways:

  • in person, through the court office or the reception office of the institution;
  • by mail – by registered mail with notification;
  • via the Internet through the use of the State Automated System “Justice” and the “State Services” service, but only if the plaintiff has a qualified electronic signature.

Proof

Evidence in the case of determining the place of residence will be, first of all, documents that will positively characterize their bearer and answer questions posed by the court (for example, about income, about the availability of living space).

The second type of evidence is the testimony of witnesses. We can talk about the child’s neighbors, friends, his teachers and educators, that is, about persons who can objectively talk about his life.

The third group is audio and video recordings. Despite the skeptical attitude towards this kind of court evidence, it can shed light on some issues and the court has the right to reject it only if it considers that it is not relevant to the case under consideration.

Documentation

The outcome of the case will depend on how carefully the applicant approaches the preparation of the package of documents attached to the statement of claim.

A typical list of required documents is as follows:

  • a copy of the claim for the defendant;
  • a copy of the marriage/divorce document;
  • copies of children's birth certificates;
  • certificate in form No. 8 (if children live with the plaintiff);
  • certificate from the plaintiff’s place of work and income;
  • characteristics from the service;
  • bank statements about the availability of accounts, etc.
  • evidence concerning the identity of the second parent and indicating the inappropriateness of leaving the child with him;
  • a receipt for payment of fees for requirements other than determining the child’s place of residence.

You can add many other papers to the list that will be relevant specifically for your situation. Only an experienced lawyer can tell you more about the exact composition of the package of documents, for advice you can contact right now on the website.

IMPORTANT: Documents are provided in copies, but only on the condition that the plaintiff can submit the originals for review to the court. If you do not plan to appear at the meeting, the documents will have to be notarized or then send the originals by mail.

State duty

Despite the obligation to pay a fee each time you go to court, there is an exception for claims to determine the place of residence of a child

  1. According to clause 3, part 1, art. 333.19 of the Tax Code of the Russian Federation, the amount of the state duty when filing a claim in court with a non-property nature is 300 rubles.
  2. In accordance with the same article, the state fee for requesting a divorce through the court is 600 rubles.
  3. According to clause 15, part 1, art. 333.36 of the Tax Code of the Russian Federation, the plaintiff, when filing an application in the case of protecting the rights and interests of children, is exempt from paying the fee.

Accordingly, when filing a claim to determine the place of residence of a child, the applicant does not pay anything, but when combining a claim for children with a divorce, he will have to pay 600 rubles. Subsequently, this amount will be recovered from the defendant upon satisfaction of the stated requirements.

How does the court determine the child’s place of residence?

For the court, when making a decision, the interests of the child, and not his parents, come first. The judge finds out with whom he is comfortable living, who can create the necessary living conditions for him, and who will not allow him to fail to fulfill his parental responsibilities.

Moreover, we are talking not only about the material side of the issue, but also about the spiritual and educational.

Factors influencing the court's decision:

  1. Attachment. If the child is participating in the hearing, the judge will ask leading questions, finding out which parent has a stronger connection. The child’s opinion is taken into account at the age of 10 years and older; if it is necessary to determine the child’s attachment, the court may order a forensic psychological examination.
  2. Level of material support and availability of living space. If the father/mother leaving the family does not have their own home or permanent income, then the court is more likely to decide in favor of the second parent, who is wealthier.
  3. Conditions necessary for the development of a child. In this case, we are talking about who can create conditions for the child under which he can, for example, attend school, kindergarten, classes, and take additional classes. How he will be dressed, etc. Parents must submit certificates from work, which will indicate the service schedule, which characterizes the presence/absence of free time that can be spent on the child.
  4. Moral qualities of parents. The court finds out the reputation of the father/mother, whether they have any criminal records or arrests, and may request a reference from their place of work. The slightest documented violation of the rights of a minor significantly reduces the chances of leaving the child with an unscrupulous parent.
  5. Opinion of the guardianship and trusteeship authority. During the process, the court may request a reasoned opinion from the guardianship about who the child should stay with after the divorce. Acts of inspection of housing conditions both at the place of residence of the parent with the child and at the place of residence of the second parent may also be requested.

The combination of all factors allows the court to make an objective and informed decision about what place of residence will be determined for the minor after the divorce of his parents. At the same time, they should not be violated.

Is the child’s opinion taken into account in court?

When considering a case to determine the place of residence of a minor, his opinion will be taken into account only if he has reached the age of 10 years. To do this, he may be summoned to a court hearing or questioned outside the courtroom, but with the obligatory presence of a teacher.

In some cases, according to the conclusion of the guardianship authority, the child may not be interrogated, for example, if he has psychological trauma due to his parents’ divorce or if he lives in another city. However, first of all, when making a decision, the court will take into account the interests of the minor citizen, even though he has not expressed his opinion.

If the child has not reached the age of 10 years and cannot express his opinion, then the court has the right to order a forensic psychological examination to clarify questions, the answers to which can help resolve the case.

An examination may also be prescribed in the following cases:

  • Equal material and living conditions for parents;
  • If there is a suspicion that an opponent has incited a child against one of the parents;
  • If there are suspicions of dishonesty of one of the parents, but there is insufficient evidence of this.

During the examination, experts interview the minor and find out his opinion regarding the dispute between the parents.

Thus, the question of determining the place where the child will live after a divorce is decided only by the court or the parents who have drawn up a voluntary agreement. Of course, it is best to resolve the conflict amicably, but if any problematic issues arise, the lawyers on our site are ready to advise you completely free of charge.

  • Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
  • Your legal problem in 90% of cases is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

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E. (mother of minor children) on determining the place of residence of children D. and N., exemption from payment of alimony for children, imposing on the defendant the obligation to transfer the children to the plaintiff. E. did not recognize the claims and filed a counterclaim against R., in which she asked to determine the place of residence of the children with her. Based on this example, the Supreme Court of the Russian Federation obliges in such cases to examine on the merits all factual circumstances and the courts do not have the right to limit themselves to establishing formal conditions for the application of the norm, otherwise it would lead to the fact that the right to judicial protection, enshrined in Part 1 of Art. 46 of the Constitution of the Russian Federation would be significantly disadvantaged. The Supreme Court of the Russian Federation also recommends doing everything to ensure that the future of children is worthy. This is another step towards building a social state.

Claim to determine the place of residence of a child

If the place of residence of the child is determined, the adoption of an appropriate decision by the justice body in no way has the right to infringe on the rights and responsibilities in relation to the child of a mother or father living separately. Another thing is that it sets a certain framework for future relationships.

A court decision to establish the child’s place of residence will be the basis for his registration at a particular address. After all, the child’s residence is legally fixed at the address of one of the parents.

Attention

In addition, the procedure for visiting a child may be revised in the future. This can happen due to the new environment in which children find themselves every day.


Info

For example, a child has already grown out of kindergarten and went to school. Then the order of meetings with the other parent will change.

News

The child’s place of residence is considered to be the place of residence of his parents (Article 74 of the Code of the Republic of Belarus). If the parents live as one family, no problems arise with the child’s place of residence, but what should a small and defenseless creature do if the people close to it cannot get along under one roof? The legislation of the Republic of Belarus determines that children have the right to special, priority and priority care from both parents and the state, which is necessary for their well-being and harmonious development. According to Article 74 of the Code of Law of the Republic of Belarus, the place of residence of a child in the event of separate residence of parents due to divorce or other reasons is determined by mutual consent of the parents, unless otherwise provided by legislative acts of the Republic of Belarus.

Statement of claim to determine the child’s place of residence

The state duty payable when filing a statement of claim, as well as a counterclaim for family disputes considered by courts of general jurisdiction, as well as magistrates, is: State duty for divorce - 600 rubles Rationale: The claim for divorce is subject to a state duty in accordance with clause 5, part 1, art. 333.19 Tax Code of the Russian Federation. The state duty when collecting alimony for minor children is not paid. Rationale: By virtue of paragraph.

15 hours 1 tbsp. 333.36 of the Tax Code of the Russian Federation, plaintiffs in cases of protection of children’s rights and legitimate interests of the child are exempt from paying state duty. In accordance with Part 2 of Art. 23 of the Federal Law “On Basic Guarantees of the Rights of the Child in the Russian Federation”, when considering cases in courts to protect the rights and legitimate interests of a child, no state fee is charged.
According to clause 14, part 1, art.

State duty to determine the child’s place of residence

State duty when dividing jointly acquired property

  • up to 20,000 rubles - 4 percent of the claim price, but not less than 400 rubles;
  • from 20,001 rubles to 100,000 rubles - 800 rubles plus 3 percent of the amount exceeding 20,000 rubles;
  • from 100,001 rubles to 200,000 rubles - 3,200 rubles plus 2 percent of the amount exceeding 100,000 rubles;
  • from 200,001 rubles to 1,000,000 rubles - 5,200 rubles plus 1 percent of the amount exceeding 200,000 rubles;
  • over 1,000,000 rubles - 13,200 rubles plus 0.5 percent of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles.

Rationale: The requirement to divide the joint property of the spouses is property, subject to assessment and subject to state duty in accordance with clause 1, part 1 of Art. 333.19 Tax Code of the Russian Federation.
Disagreements between parents about who the child will live with are resolved in court, based on the interests of the child. A parent who wants his child to be nearby and grow up before his eyes can file a statement of claim in court, detailing why he believes that the child should live with him.
Such a statement of claim is filed in accordance with Article 46 of the Code of Civil Procedure of the Republic of Belarus at the place of residence of the defendant, unless otherwise established by the Civil Procedure Code of the Republic of Belarus. According to Appendix 14 to the Tax Code (Special Part) of the Republic of Belarus, the state fee for filing a claim to determine the child’s place of residence is 3 basic units.

The complexity of the situation with simultaneous divorce and determination of the place of residence for the child lies in the different jurisdiction of these disputes. Thus, you can get a divorce from a magistrate, but all family disputes regarding children are heard by federal courts. In addition, divorce is a quick process, but court proceedings regarding children usually take a long time.

If the claim immediately contained a claim to determine the child's place of residence or such a dispute arose during the trial, the case from the magistrate must be transferred to a federal judge.

This obligation is directly indicated by paragraph 11 of the resolution of the plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15.

What must be indicated in the statement of claim to determine the child’s place of residence

The claim must indicate:

  • name of the court, parties to the case;
  • information about the involvement of a guardianship authority;
  • the date of divorce and the authority that made the decision;
  • last name, first name and patronymic, date of birth of the child;
  • lack of a notarial agreement on the child’s place of residence;
  • the child’s current place of residence;
  • reasons why it is better for a child to live exactly where it is stated;
  • the interests of the child, which would be affected by a different solution to the issue;
  • the opportunity to provide the child with everything necessary;
  • the presence of a real opportunity to create the most comfortable conditions for the child;
  • requirement indicating the address of the child’s place of residence.

Statement of claim to determine the child’s place of residence is filed according to the general rule - the state duty for a non-property dispute is paid to the court where the defendant is located in accordance with Part 1 of Art. 333.19 Tax Code of the Russian Federation.

The court, at a preliminary or main court hearing, at the request of one of the parties, may determine a temporary place where the child will live until the final resolution of the dispute.

As a rule, during the dispute, the courts determine the place of residence in the actual place, if this does not violate the rights of the child and does not contradict his interests.

This measure is a type of interim measures. The court's ruling can be appealed by filing a private complaint with a higher court.

What is taken into account when resolving a dispute

As stated in Art. 65 of the RF IC, in the process of considering a dispute, the court is obliged to establish and take into account the following circumstances:

  • the child’s contacts with each parent;
  • characterizing qualities of parents;
  • relationships between all family members;
  • the opportunity to provide conditions for the full growth and development of the child;
  • field of activity, social and financial status of parents.

The court must take into account the opinion of both parents, as well as the opinion of the child himself (if he has reached 10 years old, then without fail, in other cases - at the discretion of the court).

In some cases, an appropriate examination may be carried out in such cases. Thus, by resolution of the Supreme Court of the Russian Federation dated March 23, 2015 No. 45-KG15-3 on the dispute over where the child should live, an examination was appointed in order to establish relationships within the family, as well as the influence of the parents on the child.

Thus, it is more effective to file a claim that establishes the child’s place of residence, separately from the claim for divorce and other claims. The court is obliged to take into account all factors relating to the life and upbringing of the child, the opinions of all participants and the guardianship authority before determining the place where the child will live.


Then the divorce takes place in the registry office, and the child remains to live with the parent who initiated the divorce. What determines the place of residence of a child As a rule, after a divorce, a husband and wife separate.

Who will the child live with?

Either with dad or with mom.

But the fact that a child lives with one of the parents does not mean that the second parent is deprived of the right to raise and provide for him financially.

Deprivation of parental rights

Simple. In such cases, there is 100% evidence that the parent who is deprived of them should be deprived of them. These are documents proving cruel treatment of a child and violation of his rights.

The cost of a lawyer’s services is from 3 thousand rubles.

Complex. In such cases, it is necessary to prove that the defendant commits unlawful acts or fails to act in relation to the child.

1 tbsp.

333.36 of the Tax Code of the Russian Federation, plaintiffs when considering cases to protect the rights and legitimate interests of a child are exempt from paying state fees.

It is quite obvious that the claim to determine the child’s place of residence is aimed at protecting the interests of the child, therefore the state duty for requests to determine the place of residence is not paid. Other claims that are submitted simultaneously with the claims to determine the child’s place of residence must be paid, for example, claims for divorce or division of property.

Determining the order of communication with the child

In such cases, to guarantee the rights of the child and the parents themselves, it would be advisable to draw up an agreement on the procedure for exercising parental rights.

which will detail the schedule of communication with the child of the parent living separately from him. If the parents have not come to such an agreement, then the determination of the order of communication with the child (children) is carried out only in court.

Established judicial practice shows that the majority of minor children, after their parents’ divorce, remain to live with their mother, and therefore the courts most often determine the order of communication between the father and the child.

In the decision to determine the procedure for communication with the child, the court specifies the time, place, and duration of such communication.

State duty to determine the child’s place of residence

Statement of claim to determine the child’s place of residence

The ability of the father and mother to create the most favorable conditions for the child is necessarily determined, this includes a study of the schedule and working conditions, marital status, material wealth, housing and living conditions. The child’s opinion must be taken into account after he reaches the age of 10 years.
Thus, when drawing up a claim, it is necessary to pay attention to the circumstances that characterize the plaintiff in a more favorable light compared to the defendant.

Statement of claim regarding the procedure for participation in raising a child

The parent with whom the child lives can also make such demands in order to arrange meetings with the child of the second parent.

When deciding issues related to raising children, the court will proceed from the age of the child, will take into account the state of health, attachment to each of the parents, the child’s daily routine, the distance the parents live from each other, the availability of opportunities to provide the child with a place to sleep and rest ( if a request is made to leave the child overnight). Taking into account the above, the statement of claim should indicate in as much detail as possible about the possibility of providing the child with the most favorable conditions during communication.

State duty to determine the child’s place of residence

The employee has the right to change the credit institution to which wages should be transferred by notifying the employer in writing about the change in the details for transferring wages no later than five working days before the day of payment of wages.

The place and timing of payment of wages in non-monetary form are determined by a collective agreement or employment contract. Wages are paid directly to the employee, except in cases where another method of payment is provided for by federal law or an employment contract. Wages are paid at least every half month on the day established by the internal labor regulations, collective agreement, or employment contract.

For certain categories of employees, federal law may establish other terms for payment of wages. If the payment day coincides with a weekend or non-working holiday, wages are paid on the eve of this day. Payment for vacation is made no later than three days before it starts.

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