Leaving a child after divorce with the father
From practice, we can say that under equal conditions, the judges (and they are often women) decide the fate of the child in favor of the mother. But if you prepare serious evidence that the child will be better off with his father, the court will leave the child with his father. We have this practice and we have court decisions.
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Head of the Housing and Family Department – Yulia Alexeyevna Allaberdiyeva
Appeal to the court.
The welfare of a child consists of the basic necessities of life: – Living conditions; – Provision of food and clothing; – Upbringing; – Multifaceted positive development; – Care and love.
Each of these items contains a hidden baseline of each parent’s capabilities. The more they coincide with the child’s interests, the more likely it is to win a court case in favor of that parent. For example, parenting. This includes many factors: parent’s occupations, work schedules, mental and physical health, income, whether there are grandparents, etc. It also includes a dossier from the past life: whether the child was picking up from school, whether he was at meetings, whether he took him to practice, and whether he had them at all, circles, leisure time… Which of the parents took part in his upbringing? And if the dad is a trucker, and the question “When is the son’s birthday?” is missed by six months…, the judge is unlikely to consider the father’s candidacy for the role of permanent caregiver. And so on all positions.
The law has this article, “The judge shall make a fair and thorough examination of the case…” In this case, the judge will be biased against each side in the best interest of the child. Both dad and mom will be subjected to a full “examination.” Certificates, characterizations, testimonials, and other evidence of a compelling nature will have to be used. That’s why it’s important to gather all the important evidence and present it correctly to the court before filing a lawsuit.
Amicable resolution procedure
For example, it is possible to draw up an agreement about the order in which the children will be raised. “No! She can’t hear me,” you will say. But she will hear our lawyer – a professional family and marriage negotiator. After all, it is “their own” who does not listen and do not hear, and “strangers” very much hear. Perhaps your question can and should be resolved it is out of court. And the chances will increase. This work of lawyers and avdokat no less difficult than the judicial order of problems, requires no less training and a lot of practice. Leaving the child with the father after the divorce of the parents – this is a special category of legal cases, requiring a huge amount of pre-trial preparation.
It would seem that each parent, in his own way, is right. The role of the lawyer – to find the most important reasons why the child will be better off with his father. After all, the judge proceeds from the facts – where the child will be better off, with whom – with the father or with the mother.
A wise man once told us a parable. A mother and father were divorcing in court. The husband filed for divorce because he could no longer tolerate his wife’s eccentricities. He was leaving his wife with a child, a girl of 16. And the court would have made that decision. But everything has its own order. Both father and mother loved their daughter dearly. The mother, knowing that the girl would be safe with her father, said in court: “I think it would be better for the child to live with her father.” The eyes of the daughter’s father filled with tears of gratitude. No, his wife is not a madwoman, she is noble, she is the best, she is his life. The world turned upside down at once. “What was it for, this divorce?” – the man thought, and withdrew his complaint. And the couple went home married, keeping the family together for years to come. And if it can’t be like in the parable – there are options to resolve child rearing issues with or without a court option .
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Text writer: Generalova N.B. General Director, managing partner
How do I take my child from my wife in a divorce?
Who the children will stay with after the divorce – the court decides. Under the Family Code, both parents have equal rights to the child. However, the judge usually sides with the mother and leaves the minor with her. If the father wants to keep his son or daughter, he will need to prove that it is better for the child to be with him. The father must provide strong evidence to support his words. Winning the case on your own is very difficult, so we recommend seeking help from a professional.
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The conditions under which a child can stay with his father
Resolve the issue of residence of children can be both during the process of dissolution of marriage, and after you divorced his spouse. In court practice, most often a child under 14 years old stays with his mother. However, there are a number of exceptions, in which the court’s decision may be different. Factors affecting the child’s future place of residence:
- The age and interests of the children (from the age of 10 he may himself express the desire of whom he wants to live with);
- The material condition of the parents;
- Moral qualities of both;
- Feedback from other family members, colleagues and friends about each spouse;
- conditions in which the parents live;
- health condition of the mother and father.
One of the key factors is the fulfillment of parental responsibilities. That is, it is important to prove that the ex-wife performs them poorly or not at all. Father, in turn, should give enough time to the child and be engaged in his upbringing. In this case, there is a possibility that the child after a divorce will live with his father.
The grounds on which a child may be taken away from his mother after a divorce
After the divorce, children may live with their mother, while the father may take the child for walks, vacations, and active involvement in its upbringing. After a period of time, the father can get his children back from the mother even after the divorce. The court may leave the child to the father when:
- The ex-wife is addicted to alcohol and/or drugs;
- The woman has a mental disorder;
- The ex-wife is not fulfilling her parental responsibilities;
- The child wants to live with the father.
For example, the M family divorced six months ago. They have a common minor son who is 12 years old. After the divorce, he stayed with his mother. The father often visited his son, took him to children’s activities and the swimming pool. During the hours without his father, the child spent time with his mother’s friends, either grandmothers or stairwell neighbors. During this time, the mother was getting her life together, building new personal relationships. In the course of this relationship, she began to drink, sometimes going on binges for days at a time. That is, her son’s living conditions changed and only worsened every month. The mother did not fulfill her parental responsibilities. In this case, the father may seize the child if he can prove these circumstances in court.
If the ex-wife interferes with meetings with the father or forbids them altogether, the spouse can ask for help in court.
For example, you divorced, your daughter stayed with your ex-wife. Initially, you agreed to see your daughter at least three times a week, phone calls without restrictions. But in reality, on the days when you have meetings, the mother constantly reschedules them or takes the child elsewhere. She also does not allow you to talk to your own daughter. She does not allow you to take her to school or to a club. In this case, you can go to court.
Depriving the mother of parental rights
Another way to take the child from his wife after divorce is to deprive her of her parental rights. In most cases, this is the method that serves to transfer the child to the father after the divorce. Reasons to take away the spouse’s parental rights are:
- The child has no opportunity to receive a general education while living with the mother;
- Refusal to take the child from hospital, school, clubs and other institutions;
- Alcohol and drug addiction.
In these cases, living with the mother becomes dangerous for the children. She may have her parental rights restricted or terminated. To prove these facts, representatives of the guardianship authorities will be involved in the case. They will check the home and talk to the child.
Documents Needed to Suffer a Child
All arguments of the parties at the court hearing must be reasoned. Depending on the grounds for which the ex-husband wants to take his son or daughter in the divorce, the necessary documents are collected. Usually necessary:
- A statement of claim, which will present the arguments and demands;
- a certificate of divorce;
- A document confirming the absence of diseases of the father;
- A document confirming the level of income;
- certificate of residence;
- document confirming favorable living conditions (act of inspection by representatives of the guardianship authorities);
- Characteristics from the place of work.
If the ex-wife does not perform parental duties, then additional documents are required:
- A medical report on the condition of the spouse (alcohol or drug addiction, mental problems);
- Testimony of witnesses;
- Characteristics in which investigators, supervisor, neighbors, or other persons involved describe the mother’s behavior.
The court takes all factors into consideration. The better the conditions for living with the father for the child, the better the chances of winning the case.