Determination of the child’s place of residence

Locating the location

child’s residence

The services of a lawyer in determining the place of residence of the child.

Consulting, pre-trial negotiations, representation of interests in court

Determination of the child’s place of residence in case of divorce

The issues of determining the child’s place of residence are often the most difficult in the practice of a family lawyer. In such issues, the priority should be the interests of the child, his well-being and the ability to develop normally. However, often, the interests of the child are sacrificed to the personal ambitions of the parents. It is also not uncommon for one of the parents to speculate on their position and violate the rights of the other to equal participation in the upbringing of the child. A family lawyer will help you find a balance between the interests of all interested parties.

Contract child’s place of residence

Parents can enter into an agreement that will determine the place of residence of the child. But . preparation of such an agreement requires certain knowledge and skills. It would be reasonable, in this case, to involve an experienced family lawyer and a notary in the process.

Child’s place of residence

  • the place of residence of a child under the age of 10 is determined by parental consent ;
  • the place of residence of a child between the ages of 10 and 14 is determined by the consent of the parents and the child;
  • the place of residence of a child over the age of 14 is determined by the child independently;

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Determining the child’s place of residence

     The rupture of relations between the parents leads to the need to determine with which of them the child will live. In such a situation, it becomes necessary to clearly define the place of residence of the child. The legislation guarantees equal rights for both parents in the upbringing of their child. However, in practice, equal participation is difficult to achieve. Often, even with a peaceful, relatively calm dissolution of marriage, parents have a different understanding of who the child will live with after marriage. To make matters even worse, divorce is a huge strain on both spouses. very often one of the parties considers itself offended and tries to punish the other side by limiting the possibility of communication with their common child. Most often, mothers behave this way, although there are also opposite situations.

    There are often cases when one of the parents for years cannot get the opportunity to even see the child. Such situations are very common in the practice of our lawyers. The most common way of refusal is “indirect”, when the party with which the child is actually located refuses to meet under fictitious pretexts:

– Come on in a couple of weeks!

– I sent the child to his parents for the whole vacation!

– The child gets very tired at school!

and so on ad infinitum … With the help of such simple methods, you can drag out the situation for years.

Even more critical is the situation when one of the parents has no information at all about where his child is and what is happening to him, and the parent with whom the child actually lives refuses to contact.

In such situations, there is no choice but to initiate the determination of the child’s place of residence and, within the framework of such a process, determine the order of communication with both parents.

Practice shows that it is better not to postpone the issue of determining the child’s place of residence. Unscrupulous parents often take advantage of the situation that they themselves have created and go to court with a claim to deprive the other party of parental rights. As a justification for their position, they cite the fact that the second parent is allegedly not interested in the child’s life and does not maintain contact with him. The fact that he simply did not have such an opportunity, and through the fault of the plaintiff himself, they naturally are silent.

Judicial practice in cases of determining the place of residence of a child has recently undergone a significant change.

The Soviet legal and judicial system had a clear belief in the need to leave the child with the mother. There were virtually no exceptions to this rule. The same practice remained a legacy and was actively used in the early years of Ukraine’s independence. It was virtually impossible to determine the child’s place of residence together with the father.

Currently, judicial practice in Ukraine, following the European one, has changed significantly. The first issue was the observance of the child’s rights and interests. Thus, the courts began to rule in favor of the parent who can provide the child with the best conditions for life and development.

Determination of the child’s place of residence with the father

There are a number of situations when the father, unconditionally, receives the definition of the child’s place of residence:

  •       if the mother herself is ready to abandon claims regarding the child’s residence and agrees that the child should live with the father;

In such a situation, the best option would be to conclude an agreement that determines the place of residence of the child, as well as determining the schedule of meetings of the mother & nbsp; with the child and her participation in ensuring the material needs of the child (alimony). The contract can be filed together with a divorce claim. This will significantly optimize the divorce process and save time.

  •        if the mother suffers from alcoholism, drug addiction, mental disorders that can lead to actions that are dangerous to the life and health of the child, or leads an asocial lifestyle.

It is important to understand that the fact of the presence of certain diseases or addictions requires documentary confirmation, and in the absence, but there are reasonable suspicions of their existence, appropriate examinations.

  •       ребенок старше 14 лет сам вправе выбирать с кем проживать и может выбрать место жительства у отца.

Also, the opinion of a child over 10 years old can be taken into account by the court.

     If all of the above is not your situation, you will have to convince the court of the correctness of your position. In most cases, fathers believe that the fact of a better material component works in their favor: a higher income, or the availability of living space. It is a mistake to understand that the court will be guided only by these considerations, although the material component plays an important role in such cases.

   First of all, the court will take into account:

  1. Psycho-emotional attachment of the child to one and the second parent: determining the position of the child is an important stage in the legal process. To resolve this issue, a specialist psychologist should be involved, who, in a soft, unobtrusive, non-traumatic atmosphere of the child’s feelings, will conduct a conversation with him and determine the key questions:
  • the degree of the child’s feelings about the conflict;
  • the child’s attitude to the parents as to the family and to each parent as an individual;
  • which of the parents is the most authoritative for the child;
  • which parent will be more painful for him to part with;
  • the child’s attitude to relatives: grandmothers, grandfathers;
  • the child’s possible vision of the reasons for the parents’ conflict;

2. The size of the parent’s participation in the child’s life: this is help in the lessons, attending parent meetings, communicating with teachers, organizing the process of attending developmental circles, electives or sports sections;

3. Caring for the child’s health: it includes not only the creation of conditions for a healthy lifestyle for the child, but also a deep awareness of his health status, especially for children with health problems, meaning that the parent who pretends to living together with your child must know and understand, as well as be able to provide comprehensive and competent medical support and have a deep understanding of the processes occurring with the child

4. Ability to devote time and attention to the child: if one of the parents works a lot, has a “ragged” working rhythm, often goes away on business trips, then needless to say that this will make the process of full-fledged upbringing of the child practically impossible;

5.Family circumstances of the parents: if one of the parents is also burdened with caring for their parents or relatives (especially if they suffer from serious chronic diseases) or has a new family in which children also appeared, then this will probably be regarded by the court as a circumstance that will not give the opportunity to fully engage in the upbringing of the child;

6. And only the closing, albeit important, factor is the availability of comfortable housing in the property, the ability to provide the child with a separate room and other material benefits.

The presence of a financial component is practically not important, since this issue can be resolved by determining the amount of alimony, but we must not forget that the court cannot transfer the child to the parent who has no independent income.

     So, if the father wants to determine the place of residence of the child with him, then he needs to prove in court that he can provide most of the above factors better than the mother. For this, it will be necessary to conduct high-quality and extensive pre-trial preparation. all the facts that we want to be accepted by the court must have documentary evidence. For example, the fact of the disease is confirmed by a medical report, the child’s attachment is confirmed by the conclusion of a psychologist, participation in the child’s life is confirmed by certificates from the school, and so on…

    As we can see, this is a colossal amount of work, which, in order to obtain the desired result, is best delegated to your lawyer for family matters.

Determining the place of residence of the child with the mother

      Even despite the gradual shift in the vector of judicial practice in Ukraine towards “equality” of parents in determining the place of residence of their children, in most cases the child is still determined to live with his mother. This understanding is firmly rooted in the minds of our fellow citizens. And this often does mothers in the process of divorce a disservice. Women are confident that both public opinion and the legal system are on their side and therefore do not pay due attention to preparing to defend their position in court. In the practice of our lawyers, there were cases when the child’s father simply took the child to him after a divorce and then, thanks to high-quality preparation for the court, determined the child’s place of residence and the mother subsequently could not get the opportunity to see the child for years. Changing this state of affairs subsequently requires titanic efforts and sufficient expenditure of funds and time.

     We want to draw the attention of mothers to the fact that they can no longer be absolutely sure that the court will in any case determine & nbsp; the child’s place of residence is with her, that is, with the mother. And in order to leave the child to live with you, you will have to make some efforts – to prove the fact that the child will be better with you than with the father.

     Our family lawyer will help you in determining the place of residence of the child with the mother.

Determination of the child’s place of residence

In some cases, the court can determine the place of residence of the child with grandparents. This can happen if the parents of the child are antisocial, do not study and are not interested in the child.

If the determination of the place of residence with the grandfather or grandmother is not possible, then the child will be taken and transferred to the guardianship authorities for determination in a special institution.

The judicial procedure for determining the child’s place of residence:

The family legislation of Ukraine provides that in the absence of mutual consent between the parents regarding the issue of the child’s place of residence, the issue can be resolved by the Children’s Service bodies or in court. Indeed, the child services authorities can check all the circumstances and make a decision regarding the place of residence of the child with one of the parents. However, in practice, the problem may arise due to the fact that even having received such a decision in their favor, the other party does not want to voluntarily execute it. You will not have the opportunity to enforce such a decision.

Therefore, if you want the child to really live with you, the right decision would be to immediately apply for the protection of your rights in court. The Department of Children’s Services , in this case, will still be involved in the process, since they are entrusted with the implementation of state policy for the protection of the rights of the child. At the direction of the court, such a service will conduct an independent collection of information on all issues that are key in determining the place of residence of the child. Subsequently, such an opinion will be presented to the court, and, most likely, will be of significant importance in making its decision.

Preparing to file a claim

Considering all of the above, it can be clearly understood that in order to obtain a positive result in court, careful preliminary preparation is required. It is necessary to analyze all your strengths and weaknesses, as well as analyze the strengths and weaknesses of your opponent. Naturally, it is necessary first of all to work on your weaknesses, in order to exclude them as much as possible or to neutralize their negative influence.

Needless to say, the facts that will be applied in court in support of their position must be documented. Only in this case they will become evidence of the correctness of your position. Often, such documents become:

  • certificates from the place of residence – characteristics at the place of residence, most often they can be issued by the managing organization: the head of the housing office or & nbsp; chairman of condominiums, this also includes certificates of family composition;
  • characteristics from work and certificates of wages;
  • certificates from educational institutions & nbsp; – who and in what form participates in the upbringing of the child: picks him up from school, goes to parent meetings, and so on;
  • certificates from the children’s clinic – who brings the child for examinations and how much each parent is familiar with the condition the child’s health;
  • medical certificates – the presence of chronic diseases in one of the parents, whether any of them is registered in the hospital;
  • certificates from sports or other sections that the child attends;

When preparing a statement of claim, the plaintiff may ask the court:

  • determine the place of residence with one of the parents;

it should be borne in mind that usually the second parent actively opposes such a formulation of the question, since it reasonably assumes that such a decision may lead to a sudden change in the place of residence and the subsequent hiding of the child from him, which will lead to the impossibility of exercising his rights to equal participation in the upbringing of the child.

  • determination of the place of residence at a specific address;

some judges believe that determining the place of residence at a specific, specific address is a violation of the rights of the child and the parents with whom he is left.

Thus, given the ambiguity of judicial practice in such cases, the question of your requirements in the claim should be determined based on the specific circumstances of the case and taking into account all the accompanying factors.

Strategy in court

The behavior of the parties in determining the place of residence of the child can be conditionally divided into two categories:

  • “defensive strategy “- a person just waits for what actions his opponent will take and reacts to actual actions: he writes objections to the statement of claim, provides certain evidence of his position, and so on

The weakness of this position is that the defendant has little time to form (build) his position and document it. This often leads to the fact that the defendant will be poorly prepared and most likely to be defeated.

  • “offensive position “- a person prepares and documents all the necessary evidence of his position and initiates the beginning of the trial;

In such a situation, the plaintiff naturally controls the entire timing of the process, has greater freedom of action, which in turn makes it possible to maximize his legal position and ultimately achieve victory.

In the overwhelming majority of cases, our lawyers recommend that clients use an “offensive position in determining the child’s place of residence.”

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