Claim for visitation of the child by the father. Statement of claim for determining the procedure for communicating with children (sample statement of claim)

Regardless of whether the parents live together or separated, whether they were officially married or civil, the interests of the child are a priority. Sometimes it happens that in family disputes about who has more rights to communicate, the rights of the child are forgotten. If it is impossible to agree among themselves, the determination of the order of communication is established through the court. In order for parents living separately to act competently, without harming their child, you need to know some rules.

The right to communicate with the child in terms of the Family Code and other laws

Initially, the communication of a parent living apart from the child depends on where the child lives. The interests of children in such cases are established on the basis of the Family Code.

A parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues of the child's education.
The parent with whom the child lives must not interfere with the communication of the child with the other parent, if such communication does not harm the physical and mental health of the child, his moral development.
Article 66 of the Family Code of the Russian Federation

With which relatives the child has the right to communicate

Regardless of the relationship between the parents, the child always has the right to communicate with other relatives, if this communication does not cause harm (physical, psychological).

The child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives. The dissolution of the parents' marriage, its annulment or the separation of the parents does not affect the rights of the child.
Clause 1, Article 55 of the Family Code of the Russian Federation

On the same basis, an incapacitated parent may meet with a child if it does not cause any harm. An unreasonable ban on communication is illegal.

How to establish communication after a divorce

It is clear that the fact of divorce does not cancel the mutual rights of parents and children to communicate. And it’s good if the parents forgot about personal gain, resentment and ambition, if only the child was well. But sometimes the relationship of the former spouses is gaining such momentum that the child finds himself in very unfavorable conditions. However, disputes and scandals do not always lead to mutual understanding, and sometimes, on the contrary, aggravate the situation. Therefore, following the Family Code, the order of communication with the child can be established in two ways:

by entering into an agreement;
through the court.

Ways to resolve disputes in matters of communication are indicated by the Family Code and some federal laws:

N 98-FZ of 04.05.11.
N 57-FZ dated 12/30/15.
N 49-FZ of 04/24/08.
N 317-FZ of November 25, 2013.
N 358-FZ of November 28, 2015.

Who can ban visits of a child with relatives

By law, no one can prohibit close relatives from communicating with a child. The opinions of any of the relatives (even the mother) do not matter. And if the parties could not conclude an agreement, then for a solution to the disputed situation, you can go to court. For example, a mother allows a child to see his father, but is categorically against communicating with his grandmother (because she is bad). In this case, the grandmother can go to court. The Family Code will not take the side of the mother's statement, and the court will make a decision based on a specific case that violates the rights of the child.

The guardianship and guardianship authorities join the proceedings. They delve into the nuances of the current situation in detail and can influence the final decision of the court.

If the parties have not reached a mutual agreement, then the parent who prevents the child from communicating with other relatives may be held liable, up to the transfer of the child to the second parent.

Video: the rights of parents and children to communicate when living apart

Determination of the order of communication with the child

In matters relating to the procedure for communicating with a child, the parties have rights and obligations. Thus, close relatives have the right to communicate with the child, the child has the right to receive education and maintenance from parents and to communicate with relatives. And parents have responsibilities: to support and educate the child and not interfere with communication with relatives.

Written settlement agreement of parents

If the parents do not have reasons for an acute conflict, they can agree amicably and, if necessary, draw up an agreement on the procedure for communicating with the child. The agreement may be written by hand. The law does not regulate the preparation of such documents. Therefore, the parties can decide for themselves which issues and in what order to prescribe in it. The main thing is that the interests of both parties and the child are indicated in the document. If this is an agreement between the parents, then, at their discretion, they can include the issue of maintenance (alimony) there.

The agreement must contain:

name of the agreement (agreement or settlement agreement);
passport details of both parties;
complete information about the child;
the essence of the agreement (with whom to communicate and in what order);
the rights and obligations of the person with whom communication is supposed;
details of the order of the proposed communication (holidays, weekends, etc.);
the issue of taking the child to another country (for example, during the holidays in Turkey);
liability in case of violation of the agreement by the parties;
other conditions (termination of the agreement, force majeure, etc.);
date and place of signing the document (required place of signing, not drafting);
signatures of the parties.

If this is an agreement between the parents and it contains a clause on alimony, then such a document is notarized. In the future, this agreement will have the force of a writ of execution.

The nuance when drawing up such a document: if the child is already 10 years old, the parties must take into account his opinion.

How to achieve appointment ordering through the guardianship service

If the agreement could not be drawn up voluntarily, the interested party may apply to the guardianship authorities. A meeting will be scheduled at which a decision will be made with a schedule of meetings that is binding on both parties. And only in the case when the requirements specified in the decision are violated, you can go to court.

For example, a mother is against communication between a child and a father. The father tried to negotiate a voluntary agreement, but did not find understanding, and he had to contact the guardian service. At the meeting, the commission for the protection of children's rights approved a certain schedule, but the mother did not like it either. In order not to bring the case to court and in the interests of the child, the commission's specialists can convince the mother to accept this schedule, citing weighty arguments.

Video: what to do if the wife took the child and does not allow the father to see him

Appeal to the court in the presence of disputes and jurisdiction of cases

Cases that are related to the determination of the order of communication are not subject to the magistrate's court. In such cases, you need to apply to the district court at the address of the defendant. However, if it is not possible to come to another city, the statement of claim can be sent by mail to the address of the court at the place of residence of the defendant. It is advisable that this be a registered letter with a notification in a plastic envelope. Inside the envelope, along with the claim, you need to put an inventory of investments.

It is important to attend the court session in person, even if you are from another city. The arrival from afar will be regarded by the court as interest and worries about the child. In matters of children's rights, the courts often pay attention to any nuances.

Rules for filing a claim and a sample statement of claim

The following persons have the right to file claims on the procedure for communicating with a child:

a parent who lives separately;
a parent who lives with the child but wants to establish a communication pattern with the other party;
a close relative who is prevented and denied contact with the child.

The following documents must be attached to the claim:

copies of the claim;
a copy of the marriage certificate (if any);
a copy of the child's birth certificate;
characteristics (from the place of work or residence);
information about the complainant's free time schedule (for example, work schedule or schedule);
other documents (for example, income statement, awards, etc.).

Filing such a claim will be free of charge, there is no state duty.

Plaintiffs are exempted from payment of the state fee in cases considered in courts of general jurisdiction, as well as justices of the peace - when considering cases on the protection of the rights and legitimate interests of the child.
subclause 15 clause 1 article 333.36 of the Tax Code of the Russian Federation

Objection to the lawsuit on the order of communication with children

If you are the defendant and do not agree with the requirements specified in the claim, you can file an objection. For example, you received a letter from the district court, in which a copy of the claim. It states that the defendant does not accept money and interferes with communication with the child. If you disagree with part of these statements, an objection is a way out.

However, situations sometimes arise when the defendant does not have time to properly prepare an objection and have to put up with a subsequent decision. In this case, you can file a motion to postpone the date of the hearing due to the fact that you did not sufficiently study the claim and the attached documents (this is done quickly). The court will postpone the hearing and you will have time to prepare properly, buying time to collect documents and file an objection. If the case is full of many subtleties and complexities, it is advisable to contact a lawyer for drafting.

How to determine the order of communication during the trial

An application for a temporary order of communication with a child must be submitted in cases where:

the issuance of a judgment is delayed for a long time;
the judgment has not entered into force.

For example, the case is complicated by some factors and it became clear that the decision would be made in 2 months (or a petition was filed to postpone the date of the hearing). In order for parental rights to be exercised by both parties during the trial, such a petition can be filed. Most often, the court examines the requirements of each of the parents and offers a third option, but it's worth trying anyway.

Schedule of communication with a child after a divorce

The schedule of communication with the child is a mandatory attachment to the statement of claim and the application for a temporary order. The court must compare the schedules of both parties in order to make an objective decision. For example, the father requires meetings with the child during the weekend (Saturday - Sunday), and the mother attached a certificate from the pool to her schedule (schedule: Tuesday, Thursday, Saturday). The court compares the schedules and sets the days of meetings with the father: Tuesday and Thursday.

You can specify approximate or exact dates in the schedule. But you should also think about spontaneous meetings in advance. For example, a mother once a month makes a purchase of groceries. At this time, you can allow the father to pick up the child. It is also important to indicate the conditions of communication in the schedule. If these are calls, then the method of making them (carrier, gadget used). For example, mobile communication through a phone is convenient, and dad makes video calls to a computer, which is inconvenient for mom. If this is a meeting, then where and under what conditions.

In case of serious disagreement, you can contact a lawyer.

The law does not provide for any restrictions on the duration of visits with a child. But if one of the parties is against communication and the order is appointed by the court, then you have to adapt to this order. When deciding on the time of meetings, the court takes into account the following:

convenience for both parties (working hours, distance of residence, etc.);
child's desire
the age of the child (small children may gradually forget a parent whom they do not see for a long time);
whether communication does any harm to the child;
so that the time of communication with the father does not exceed the time of being with the mother.

How to challenge a court decision

Courts of first instance do not always deliver an objective verdict. In this case, you can file an appeal. It is filed in the same court that made the decision, and he sends the claim to a higher court. The law allocates a month for this from the moment the resolution is issued. The dissenting parent also has the right to file a counterclaim.

Video: restriction in parental rights

Changing the order of communication with the child after a court decision

Many parents who are not satisfied with the communication schedule do not know that the order established by the court can be changed. Like the first establishment, this can be done peacefully and through the courts. For example, parents have been divorced for 5 years, a seven-year-old child lives with his mother, everyone is used to the established schedule. But then the mother got married a second time and moved with her child to a new husband (in another district of the city). The schedule ceased to suit both parents, and by phone they were able to agree that now dad picks up the child not every week for 1 day (on Sunday), but twice a month, but for two days (Saturday and Sunday), so as not to waste time and strength for frequent trips.

However, if for the first time the parents established this order through the court, then most often the change will take place in court.

Reasons for changing the order of communication with the child:

changing the living conditions of the child;
change of educational institution by the child;
disease;
important circumstances of parents (for example, business trips);
other reasons.

To make changes, you need to draw up an application to the same district court according to the type of statement of claim on the procedure for communication. It specifies the previous order and the changes you want to achieve. This is supported by arguments and evidence (certificates from schools, business trip orders, etc.).

Rules for visiting a child by a father during a divorce

After a divorce, the father, who lives separately from the child, still has the rights:

to see and communicate with the child;
participate in the upbringing, maintenance and development of the child.

The father does not need special permission to visit the child. However, the father does not have the right to invade the private territory of the former spouse, forcibly take the child without the consent of the mother and inflict any harm on him (offend, cause physical harm, psychological trauma, etc.). There are no restrictions on the age of the child, but it is important that any communication be with the consent of the mother.

For example, the child is two years old, the father came to take the baby to him. The mother, in order to avoid violation of the rights of the child, did not interfere. When the child was brought home in the evening, it turned out that he had not been fed and his face was tear-stained. Of course, next time she will be against such meetings and will insist that the dates take place in her presence.

Video: family disputes about the order of communication with the child

What to do if the father violates the order of communication with the child

If the court made a decision on the order of communication, the mother does not have the right to arbitrarily interfere with meetings and conversations. Sometimes it happens that the father violates the established order, provoking conflicts. In cases where the mother, succumbing to a provocation, forbids the child to see the father, the latter has the right to file a lawsuit for violating the order by the mother. But the mother, of course, can file a claim.

It is difficult to achieve change in such cases, the court will not take into account phrases like "He does not care about order." There are little tricks to help you achieve what you want. The situations that the father provokes should be fixed. For example, save an SMS message stating that he did not care about orders, record a dialogue in which he threatens on a voice recorder, carry out a telephone conversation on speakerphone in the presence of a witness, etc. If there was a serious delay in transferring a child to you, you can contact to the police with a statement. Fortunately, you have court documents in your hands. In the future, all this evidence will help win the case to change the order.

In case of failure to comply with the court decision, the measures provided for by the legislation on administrative offenses and the legislation on enforcement proceedings are applied to the guilty parent. In case of malicious failure to comply with the court decision, the court, at the request of a parent living separately from the child, may decide to transfer the child to him based on the interests of the child and taking into account the opinion of the child.
Clause 3, Article 66 of the Family Code of the Russian Federation

Arbitrage practice

Claims to establish or change the order of communication are almost always satisfied (in whole or in part). For example, a grandmother applied to the court to establish a procedure for communicating with her grandson, since the father of the child prevents meetings, and the mother is serving a prison sentence. The court, having studied all the materials (including the degree of relationship), satisfied the claim.

When deciding on the procedure for communicating with a child, the courts take into account the conditions that relatives (including the grandmother) can provide for the upbringing and development of the child

Most often, when making a decision, the courts are guided by what conditions the child can expect. For example, after a divorce from her husband, the mother prevents communication with her grandfather, who, in turn, filed a lawsuit. The court studied the materials of the case and, despite the fact that the child's father suffers from chronic alcoholism and does not have a sense of responsibility, satisfied the grandfather's claim. The fact is that the living conditions of the plaintiff and the defendant are very different. Mom and child live in a communal apartment, solely due to the help of relatives and alimony, and grandfather has a large house, a garden, a good material base for the development and upbringing of a child.

Therefore, the financial side of the issue is often of great importance. Courts are rarely guided by how high-quality and moral education can be given by relatives living separately from the child. For example, the court restricted communication with the grandmother, who is the holder of an academic degree and an activist in a public organization. The court did not take into account how the grandmother can help (participate) in the upbringing of the child due to insufficient material resources (she lives in an old hostel, the room is 16 m 2).

Video: the court takes the child from the mother and hands it over to the father

Communication with two children

The order of communication with two (or more) children is determined in the same way and on the same grounds as the order of communication with one child. The only difference is that the court takes into account not only the statements of the parents and the interests of the child, but also the interests of all children. This most often results in a court decision in favor of the children and the mother. Therefore, in case of disagreement regarding the order of communication, it is advisable to choose a course of action, as a result of which a voluntary agreement will become possible.

In practice, it happens that two (or more) children are involved in disputes related to property issues. But in this case, the court is more likely to take the side of the mother. For example, a man went to court with an application to establish a procedure for communicating with two children. During the trial, it turned out that the father registered his shares of the apartment for these two children, in which the mother (the legal representative of the children) and children began to live. It also turned out that a dispute arose between the former spouses about the apartment, the door locks were replaced by the defendant. The court refused to satisfy the claim of the man, since they did not properly present arguments, and there was an interest in the property issue.

So, the order of communication with the child is established peacefully and through the court. If it was not possible to agree amicably, you need to file a lawsuit to establish a communication procedure. It is not necessary to set the child against the other side, it is not in his interests. The child has the right to communicate with all relatives, if it does not harm him. But each situation implies the presence of many nuances, and in case of doubt, you can always contact a lawyer. The main thing is that all actions regarding the order of communication should be performed solely in the interests of the child and for his good.

By law, both parents have the same rights to ensure the full upbringing of the child. When they are divorced, the child, according to the law, will live with one of the parents, while the second is guaranteed the constitutional right to a full upbringing, spending time. As practice shows, there is freedom to communicate with your child, to receive all the necessary information on education, standard education, and, if necessary, treatment. In order to be able to exercise this right, a statement of claim is provided regarding the determination of the procedure for communication of a particular parent with their child. It should be noted that not only a member of the former family who now lives separately from the child has this right, but also lives together when such a need arises for the subsequent determination of meetings with a common child living with the second parent.

What does the court rely on when considering a claim?

When considering a statement of claim to establish a procedure for subsequent communication with your child, representatives of justice are guided by the following factors:

The current state of health of children, considering which parent will be more comfortable and safer to be with. If it is a question of children with disabilities, the question of how best to provide special care is considered, in which case a court decision will be determined if the care is as close as possible to the recommendations of medical specialists;
Possible attachment to each of the two parents, which is expressed in the child's own wish to remain with the mother or father. As a rule, this practice is most common in other countries, in Russia they also began to pay attention to this factor;
Formed remoteness of residence of former family members, which is expressed in the difficulty of regularly visiting the child and the need to travel (for example, when it comes to the stay of parents in different settlements outside the region, territory);
In the event that the claim states the requirement to leave the child for the night, the representative of the court considers the issue of providing the child with an optimal place to sleep and rest, which is also paid close attention by the representatives of justice.

Taking into account all of the above, it is necessary to indicate in detail the very possibility of the future provision of conditions by parents in the process of direct communication in the sample of the prepared statement of claim to determine the procedure for communication between both parents and the child.

What is stated in the claim

Be sure to include in the claim information regarding the provision of favorable conditions for the processes of the exercised right to communicate. When offering a mode of communication, you should definitely take into account your own work procedure, a similar mode of work of the defendant, visits by the child to various special institutions (for example, the same kindergarten, if the need arises, schools, developing circles and sports sections). It should be taken into account that the other parent also has every right to spend time with their children, for example, on weekends, vacations available, holidays that have fallen, in particular, the birthday of the child himself.

Features of the rules for filing a claim

When, prior to filing a lawsuit, communication was episodic, it would be quite natural to assume that in a completely unfamiliar environment, the child will feel uncomfortable and even find himself in a stressful situation. In this case, it is worth asking the court to provide communication for a limited period of time.

Once a verdict has been issued, its existence does not prevent the plaintiff from filing a new lawsuit in the case, which will form a requirement to establish a different order of communication when the situation changes. This is true for cases when at the time of parting the living conditions are the same, and after that they begin to change.

As part of the proceedings, it is necessary to declare the need for a special forensic examination, the purpose of which is to establish favorable communication between the child and parents living separately. Various options for solving problems regarding the establishment of participation in the upbringing of a child can be issued by district or city courts. The claim is filed directly at the place of the current residence of the defendant, when drawing up the document, the fee is not paid.

Claim content

According to regulatory requirements, the claim contains the following information:

The heading of the document indicates the name of the court, provides complete information regarding the defendant and the plaintiff (the full name, address of actual residence is prescribed);
The name of the document itself is indicated with full information regarding the intended purpose. Additionally, it may be indicated that the document is in the nature of excluding obstacles to communication with children, subsequent participation in education and many other issues;
In the content of the document, it is required to indicate the very fact of a previous marriage between the plaintiff and the defendant (the exact date of marriage and full name are indicated). Further, it is also necessary to indicate that there are children or one child from this marriage, indicating dates of birth, full name;
The time of termination of the actual relationship is indicated, after which the established common household is not maintained and the marriage is terminated (in the event that at the time of preparation of the appeal, the marriage is not dissolved, this is also indicated in the general manner). The plaintiff also indicates the fact that the child lives with the defendant;
It is imperative to provide a general description of the health status of the child or children, with the condition that they need or do not need special care. According to available data, the child is equally attached to each of the parents;
Within the scope of the lawsuit under consideration, the plaintiff asks the court to consider the composition of the case and take into account certain circumstances that may affect the emotional and physical condition of the child, and ensure full moral development in the future.

It is necessary to attach information that the plaintiff's personal qualities in everyday life, in the performance of his official duties at the workplace, are characterized on the positive side. Specific requirements are outlined in the legal framework, in particular, they are regulated by paragraphs of Article 66 of the UK. In this aspect, the parent is given the full right to communicate with children and spend time with them, to exercise the right to co-educate. On the basis of the same article, the parent has the right to take part in choosing the place of education of the child and other circumstances. It is worth pointing out the fact that the defendant creates an obstacle to this, a specific list of actions is provided aimed at excluding full communication with the child.

To the Butyrsky District Court of Moscow

Claimant: [full name]

Address: [fill in]

Respondent: [full name]

Address: [fill in]

Third person: [indicate the name of the guardianship and guardianship authority]

Address: [fill in]

Statement of claim

on determining the order of communication with the child

I am the [father/mother] of a minor [son/daughter] [full name minor child], [date, month, year] of the year of birth, who, after the dissolution of the marriage on the basis of the decision of [name of the court] dated [day, month, year] in civil case N[value] lives with the defendant at: [ enter the correct one].

By virtue of Art. 54, 55 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), a child has the right to be raised by his parents, to ensure his interests, all-round development, respect for his human dignity. The child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives.

In accordance with the provisions of art. 61, 63 of the Family Code of the Russian Federation, parents have the right and obligation to raise their children. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.

I repeatedly tried to agree with the defendant (to conclude a written agreement) about the time, place, duration of my communication with the child, however, to date, no agreement (agreement) has been reached between us.

The Respondent prevents me from communicating with the child, which is expressed in [indicate the specific actions of the Respondent that prevent communication with the child].

The above circumstances are confirmed by the following evidence: [fill in as appropriate].

Thus, through the fault of the defendant, I am deprived of the opportunity to exercise my parental rights in relation to the child in the form of participation in his upbringing, to fully communicate with [son / daughter].

According to Art. 66 of the Family Code of the Russian Federation, a parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues of the child's education. The parent with whom the child lives must not interfere with the communication of the child with the other parent, if such communication does not harm the physical and mental health of the child, his moral development.

I am currently employed by [insert name of organization, position held and level of monthly income]. According to the production characteristics, it has proven itself on the positive side.

Provided with (a) living quarters on the right [fill in the right one], with a total area of [value] sq. m.

I pay money for the maintenance of the child regularly.

Repeated appeals to [name of the guardianship and guardianship authority] on the issue of determining the procedure for communicating with the child did not lead to a positive result, since the defendant creates obstacles in communicating with the child.

The main controversy between me and the respondent arises in connection with [fill in as appropriate].

According to paragraph 2 of Art. 66 of the RF IC, at the request of the parents (one of them) in the manner prescribed by the civil procedural legislation, the court with the mandatory participation of the guardianship and guardianship authority has the right to determine the procedure for exercising parental rights for the period until the court decision enters into legal force.

This procedure is established by clause 6.1. Art. 152 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation).

[State additional facts at the discretion of the plaintiff].

Considering the foregoing, guided by Art. 61, 63, 66 RF IC, Art. 131, 132, paragraph 6.1. Art. 152 Code of Civil Procedure of the Russian Federation,

1) Establish the following procedure for communicating with [full name child]: [indicate the procedure proposed by the plaintiff for communication with the child and participation in his upbringing].

2) Determine the procedure for the plaintiff to exercise parental rights for the period until the entry into force of the court decision.

Applications:

1. Copy of the statement of claim.

2. A copy of the decision of [name of the court] dated [date, month, year] in civil case N[value].

3. A copy of the birth certificate [full name child].

4. A copy of the certificate of the medical institution on the state of health [full name plaintiff].

5. A copy of the certificate of income [full name plaintiff].

6. Description from the place of work of the plaintiff.

7. A copy of the act of inspection of the apartment, conducted by the guardianship and guardianship authority at the location of the residential premises from [date, month, year] N[value].

8. Receipt of payment of the state fee.

[signature, initials, last name]

[day month Year]

November 06, 2015, 08:33

A parent living separately from the child has the right by law to communicate with the child, as well as to participate in his education and upbringing. In turn, the parent with whom the child lives should not interfere with this communication.

In accordance with paragraph 8 of the Decree of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 N 10 (as amended on February 6, 2007) “On the application of legislation by the courts in resolving disputes related to the upbringing of children”, if the parents could not reach an agreement on determining the procedure for communication with a child, a parent living separately from the child, this dispute is resolved by the court with the participation of the guardianship and guardianship authority.

When determining the procedure for communication between a parent and a child, the child's age, state of health, attachment to each of the parents and other circumstances that can affect the child's health and moral development are taken into account. These circumstances include: the length of time during which the child did not communicate with the plaintiff; remoteness of the place of residence of the separately living parent from the place of residence of the child; living conditions in which the child will be with the plaintiff, the daily routine of the child.

A statement of claim to determine the procedure for communicating with a child is filed with the district court at the place of residence of the defendant. This claim is not subject to state duty. As explained by the Supreme Court of the Russian Federation in a review of the practice of resolving disputes related to the upbringing of children by the courts, on July 20, 2011, the requirement to pay the state fee for disputes related to the upbringing of children is illegal, since these disputes relate to cases on the protection of the rights of the child and the fee is not are taxed, which follows from the provisions of clause 15 of part 1 of article 333.36 of the Tax Code of the Russian Federation.

Sample statement of claim for determining the procedure for communicating with a child

AT Name of the court district court of St. Petersburg, postcode, St. Petersburg, st._________, house ___.

Claimant: Full Name residing at: postcode

Respondent: Full Name residing at: postcode, Saint-Petersburg, st.

"Name of the Moscow Region at the place of residence of the father", the address: postcode

Third party: Guardianship and Guardianship Authority of the Municipality "Name of the municipality at the place of residence of the mother", the address: postcode, St. Petersburg, st._________, house __, cor.__, apt.___.

Claimant exempted from payment of state duty

(clause 15, part 1, article 333.36 of the Tax Code of the Russian Federation)

STATEMENT OF CLAIM
on determining the order of communication with the child

Since "___" ___________ 20__ I am married to Surname First name Patronymic of the respondent. From marriage we have a young daughter ( son) - Surname First name Patronymic of the child, "__" _________ 20__ year of birth series and number of the birth certificate, by whom and when issued. Until “___” ___________ 20__, we lived at the address of my registration, where our child is also registered.

The marriage between me and the defendant is now dissolved series and number of the certificate of divorce, by whom and when issued (or the marriage is not dissolved, but the actual marital relationship is terminated). From "__" _________ 20__, the defendant with the child lives separately from me at the place of her registration.

Currently, the respondent is preventing my communication with the child. Further, indicate the specific facts of obstructing communication and refusal to reach an agreement on determining the procedure for communicating with the child. For example: to my requests made in a personal meeting "__" _________ 20__ about how to come to a mutual agreement on the settlement of the possibility of my communication with the child, the defendant refused. As a condition for my communication with the child, she demands money from me, unreasonably claiming that the monthly funds transferred to her for the maintenance of the child in the amount of _______ rubles are clearly not enough for this. At the same time, I have always fulfilled and fulfill all parental duties properly.

All of the above will be confirmed by witnesses, whose appearance in court I will ensure:

1. Full name of the witness
2. Full name of the witness, residing at the address: St. Petersburg, st.________, d. ___, bldg. ___, apt.___.

By virtue of Art.Article. 54, 55 of the Family Code of the Russian Federation, the child has the right to be raised by his parents, to ensure his interests, all-round development, respect for his human dignity. The child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives.

In accordance with the provisions of Article.Article. 61, 63 of the Family Code of the Russian Federation, parents have the right and obligation to raise their children. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.

Considering the foregoing, guided by Article.Article. 61, 63, 66 RF IC,

ASK:

Set the following order to communicate me Full name of the plaintiff with daughter ( son) Full name of the child, "__" _________ 20__ year of birth:

Every second and fourth weekend of each month (11:00 Saturday to 21:00 Sunday), outside the mother's home and without her presence;

During my annual summer vacation 28 calendar days, during winter holidays 7 calendar days outside my mother's house and without her presence.

Applications:
1. A notarized copy of the child's birth certificate;
2. A notarized copy of the marriage certificate (on divorce);
3. Certificate of registration f.9;
4. A copy of the application to the guardianship and guardianship authorities and the response from the guardianship and guardianship authorities;
5. Copies of the statement of claim with attachments for the defendant and third parties.

"__" _________ 20___

Plaintiff's signature

Not all parents after a divorce can agree on which of the spouses the child will live with and at what time to communicate with him. After the divorced have ceased to live under the same roof, the place of residence of the children is the house of one of them - dad or mom. With whom the child remains and how the judicial practice on such issues is developing is a separate issue. In this article, we will tell you how to civilly resolve a dispute over determining the order of communication with children.

settlement agreement

In accordance with Art. 63 of the Family Code of the Russian Federation, parents are obliged and at the same time have the right to raise their own children. This means that before other persons (teachers, grandparents, doctors, educators, coaches) they have the priority right to decide whether the child will play music, football or chess, which school he will study at, etc.

At the same time, parents are obliged to participate in the physical and mental formation of the child's personality, and failure to fulfill these obligations may entail at least administrative liability under Art. 5.35 of the Code of Administrative Offenses of the Russian Federation - for failure by parents to fulfill their obligation to educate.

Thus, in order to find a certain balance between parental rights and responsibilities, families often conditionally distribute the roles of raising children. For example, a father goes fishing with a child, repairs a house, etc. Mom usually takes on the role of the guardian of the hearth, gives the baby kindness and affection.

When the family is destroyed, the familiar world with such roles cannot be preserved. At the same time, the duties and rights of parents remain, and they must be implemented. This is not always possible - on hearing (from programs, Internet news) there are situations when a parent living separately wants to spend time with children, and relatives of the opposite side obstruct him. In such cases, lengthy litigation is likely.

You can do without a court decision if the former spouses can agree among themselves and conclude a settlement agreement - to peacefully resolve the problem that has arisen about communicating with a joint child. This form of mutual understanding is highly desirable, since it saves all its participants, and most importantly, children, nerves, time, and in some cases money.

Question:
How to draw up a settlement agreement?

To begin with, it is necessary to sit down at the "negotiating table" at least for mother and father, discuss the daily routine and schedule of the child, the possibility of adults participating in his life. Three main questions must be resolved:

place of communication- it can be the place of residence of the former spouse (both one and the other), the place of residence of the grandmother, public places - a park, a school, etc. Places for communication may be different depending on the time of day or on the day of the week. Traveling together with one of the parents can be separately agreed.
communication time- here the schedule of classes and vacations, weekdays or holidays can be taken into account, a specific time of day or a period of time can be detailed.
order of communication- This item can be negotiated depending on the circumstances. So, duties may be indicated to pick up the child from home, bring it to training, walks in the presence of another person (for example, a babysitter), etc.

As you can see, the terms of the settlement agreement can be absolutely anything, at the discretion of the two parties, that is, the parents. The best interests of the children should be a priority in the drafting of the contract. You can use the sample:

AGREEMENT
about how to communicate with a child

Popov Victor Sergeevich (father), passport 1212 No. 280190 issued on June 21, 1997 by the Department of Internal Affairs No. 1 of Moscow, subdivision code 300-005, residing at the address: Moscow, st. Sennaya, 3, apt. 6, on the one hand, and Popova Maria Ivanovna (mother), passport 1213 No. 24353636 issued on September 22, 2010 by the Department of Internal Affairs No. 1 of Moscow, subdivision code 300-006, residing at the address: Astrakhan, st. Derevenskaya, 4, on the other hand,

in accordance with Part 2 of Article 66 of the Family Code of the Russian Federation, have concluded this agreement on the procedure for exercising parental rights in relation to Gleb Viktorovich Popov, born on September 7, 2012, who lives with his mother at the address Moscow, st. Derevenskaya, 4:

1. Mother and father all questions about upbringing and education, as well as about the physical development of Popova G.V., born in 2012, decide jointly by mutual agreement, only the interests of the minor are considered a priority in this.

2. The mother undertakes to provide the father with the opportunity to meet and communicate with Popov G.V. in the following order:

2.1 with the consent of Popov G.V. every Sunday (or on prearranged other days of the week) from 10 am to 10 pm in any territory by mutual agreement, taking into account the wishes of the child.

2.2 with the consent of the child annually in the summer, that is, from 01.06 to 01.09, take him for 1 month to go to places of rest, including a resort, a sanatorium, etc. - a specific place of rest is determined by mutual agreement of both parents;

2.3 not obstruct the father in exercising his rights, prepare the child at a predetermined time and date, providing him with everything necessary for walking and spending time with his father.

2.4 notify in advance of the objective impossibility of communicating with the child (additional classes, illness, etc.).

3. The father undertakes:

3.1 at the appointed time, without delay, arrive at the place of residence of the son of Popov G.V. or to another prearranged place, pick him up for a joint pastime, return him no later than 22:00 on the same day or earlier (by oral agreement) back to the same place;

3.2 comply with the safe conditions for the transportation of the child during communication, as well as comfortable conditions for staying in residential and other premises where the child is supposed to be;

3.3 inform the mother in a timely manner about the threat to the health of the child, about force majeure circumstances not provided for by the agreement that arose during communication with Popov G.S., as well as about arrival at the place of rest in the case provided for in clause 2.2 of this agreement, and about the time of returning home .

3.4 return the child to his place of residence on the day of arrival from the place of rest in the case provided for in clause 2.2 of this agreement;

3.5 in a timely manner (if there is an objective possibility - three days in advance) to notify M.I. Popova in any convenient way. about the impossibility of arriving at the time established by agreement or other agreement to communicate with the child.

4. General responsibilities of parents:

4.1 Popova M.I. (mother) and Popov V.S. (father) undertake to maintain friendly relations in the presence of their child, to avoid conflicts, obscene language and discussions of a negative nature.

4.2 Parents undertake to strictly comply with the terms of this agreement, comply with the norms of the family legislation of the Russian Federation, promptly notify each other in any convenient way about changes in life that have arisen that are not provided for by the agreement and affect the established procedure for communicating with the child Popov G.V.

5. Validity of the agreement.

5.1 the term of this agreement is 2 years from the date of signing;

5.2 in the absence of objections from the mother or father, an automatic extension for the same period is valid for an unlimited number of times;

5.3 if necessary and by mutual agreement, the parties have the right to change the order of communication with the child, it is allowed to draw up additional agreements.

5.4 unilateral refusal to fulfill the terms of the agreement is unacceptable;

5.5 all disputes in connection with the performance are resolved through negotiations between Popova M.I. and Popov V.S., and in case of failure to reach an agreement - in court.

Popova M.I. number, signature. I have received the agreement and agree to abide by it.

Popov V.S., number, signature. I have received the agreement and agree to abide by it.

The agreement can be certified by a notary, then one copy will remain in the notary's office, the other two will be transferred to the former spouses.

It is allowed to draw up an agreement in simple written form without notarization, because this is a document of mutual agreement and as long as its conditions are met by both parties, there are no problems. If the conditions are not met, it does not really matter whether the agreement was certified by a notary - in such cases, almost always one of the parents goes to court.

Going to court

A claim for determining the procedure for communicating with a baby should be filed with the district court, while the state duty for cases of this category is not provided for by law. The participation of a representative of the district department of guardianship and guardianship is mandatory in the proceedings.

It is noteworthy that for the period of the trial, which can drag on for many months, the judge has the right, at the insistence of one of the parents, to establish a temporary procedure for communicating with children, which will be valid until the date the court decision comes into force.

Usually, the parent who is not allowed to see the child (most often the father) applies to the court for judicial protection of their parental rights. At the same time, the law does not prohibit the mother, with whom the children actually live, from becoming a plaintiff.

Example. After the divorce, 10-year-old Sergei lived with his mother, but his father did not leave attempts to communicate with him. He met him at the school, from tutoring, stalked in the courtyard of the house. At the same time, the man categorically did not want to agree on specific days of spending time with his son, since he was in an extremely conflicting relationship with his mother. Believing that the father harms his son with his sudden appearances, without taking into account the child's employment, the ex-wife went to court with a lawsuit to establish a communication procedure.

Note that not all courts accept such claims for consideration (when it is the parent with whom the child is with). In the ruling on refusal to accept the claim, the judges refer to Art. 66 of the RF IC, believing that a parent who lives separately from children should apply. At the same time, such determinations are in some cases appealed and canceled because they do not meet the requirements of family law.

Within the meaning of Art. 67 of the Family Code of the Russian Federation, grandparents, as well as other relatives (aunts, uncles, brothers, sisters) have the right to communicate with the child. Consequently, if one or both parents prevent them from doing so, a lawsuit can also be brought against the latter to determine the procedure for communicating with a grandson, nephew, etc. There are many such disputes in jurisprudence.

As in any other civil dispute, the parties should stock up on evidence. For example, if the ex-wife believes that her husband should not see each other more than once a week, you can provide evidence of the child’s employment, his need for special care, which only a mother can provide, etc. In turn, the father, who insists on closer communication with the offspring, has the right to provide the court with proof of his income (for example, for a vacation trip), favorable living conditions (for leaving his son or daughter for an overnight stay), his work schedule (the ability to take the child in circles and sections).

Judges always proceed from the interests of children. As in disputes about the deprivation of parental rights, the court has the right to ask for the opinion of a minor if he is 10 years old. In general, judges pay attention to the following circumstances:

1. the health status of the child and parents. If a minor suffers from any serious illness or has a disability, the communication procedure will be approved based on the information provided about the daily routine, the need for medication, rehabilitation, etc. In especially severe cases, the court has the right to allow communication with the child only on the territory of his place of residence or in a medical institution.

In addition, the court has the right to take into account the state of health of the parents: the diagnosis of a parent who does not live with the children may be taken into account. For example, if he has difficulty moving, the judge may oblige the former spouse to bring the child to the patient if this does not contradict the interests of the baby.

2. educational process of a minor. The schedule of classes and the location of the school are of great importance in cases where the father wants to pick up the child overnight or go with him to another region (perhaps abroad) for a long time. The court finds out the possibility of studying at the place of stay, as well as the actual availability of the educational institution in relation to the father's house, if temporary residence is planned with him.

3. parental involvement in the upbringing of the child. If the court establishes that the parent who does not live with the children for a long time (for example, several years) did not have contact with them, a communication schedule can be approved with short time intervals, without trips and overnight stays, which is completely logical in this case as well is in the best interests of the minor.

4. child's age. There is a big difference in the resolution of the dispute, the subject of which is the order of communication with the baby and the dispute, where the interests of the teenager are considered. In the first case, the courts often limit the communication of dads, allowing them to take walks in the presence of the mother, visiting the child exclusively at her place of residence. This is understandable, since it is vital for babies to be close to their mother.

So, if all the documents are collected and you have not left the intention to go to court to protect your parental rights, you need to start this way by drawing up a statement of claim.

Sample statement of claim for determining the order of communication

As with other types of civil cases, you can contact lawyers who will help you type a claim. At the same time, there is nothing difficult in compiling this document, everyone can handle it on their own and save from 3,000 to 10,000 rubles. You can use the sample statement of claim to determine the order of communication between the father and the child:

To the Oktyabrsky District Court of Tomsk

Claimant:
Rakov Nikolay Vasilievich,
Born in 1977, residing at:
Tomsk, st. Dnepropetrovskaya, 12, apt. 7

Respondent:
Smirnova Valentina Ivanovna,
Born in 1979, living at:
Tomsk, st. Ternistaya, 34, apt. nine

Third person:
department of guardianship and guardianship in the Oktyabrsky district
Tomsk, st. Kolesnikova, 17A

STATEMENT OF CLAIM
Determining the order of communication with a child after a divorce

From 10/01/2009 to 11/06/2018 I was married to Valentina Ivanovna Smirnova, on 11/06/2018 our marriage was dissolved, the joint son Rakov Ivan Nikolaevich, born on 11/12/2012. stayed with his ex-wife.

Between me and Smirnova V.I. On 01/01/2019, an agreement was concluded on the order of communication between the father (that is, me) and the son, where I was given the opportunity:

walks with a child, at least 2 per week from 18 to 20 hours;
communication with the child at my place of residence every Sunday from 10 am to 4 pm.

The ex-wife does not fulfill the terms of the agreement, in connection with which I declare its termination and, on the basis of Part 2 of Art. 66 SK PF,

Establish the order of communication with my son Rakov Ivan Nikolaevich, born on November 12, 2012, in the following form:
- meeting from kindergarten No. 3 in Tomsk in the evening on Wednesdays and Fridays;
- walks, leaving the child at my place of residence on Saturdays from 15:00 to 15:00 the next day.

Observe the interests of Rakov AND.N., promptly return him to the place of residence of Smirnova The.AND. I undertake.

Appendix:

a copy of the claim;
a copy of the divorce certificate;
a copy of the birth certificate of Rakov I.N.;
a copy of the act of examining living conditions at my place of residence (compiled by the guardianship authority);
a copy of the personal income tax certificate on income for 2018, the first half of 2019.

Number, signature, Rakov N.V.

After receiving the statement of claim, the judge within a few days will appoint the preparation, and then the court session, which takes place in the usual manner. First, the essence of the case is reported, then the explanations of the parties are heard, petitions for the attachment of additional documents or the interrogation of witnesses can be satisfied. At the end of the court session, everyone, including the representative of the guardianship, once again expresses their opinion on the resolution of the dispute.

Prior to the removal of the judge to the deliberation room, the parties have the right to think over everything again and conclude an amicable agreement. In this case, the judge approves such an agreement, and if it is not fulfilled, you can turn to the bailiffs for enforcement (as opposed to the agreement that is concluded between parents without trial).

In the operative part of the decision, the court is obliged to indicate exactly what procedure it has established, specifying exactly what actions the parent has the right to perform, at what time, days or months.

The decision may be appealed within one month after the announcement of the full text. It should be noted that the established procedure is often appealed by a dissatisfied party that does not agree with the approved conditions, the schedule for visiting the child, etc. In some cases, those who were denied the right to communicate with the child apply for an appeal.

Watch the video for more information on determining the procedure for communicating with children in court and on judicial practice in such cases:

When the claim is denied

We note right away that there are few such cases as a percentage of satisfied claims. Still, judges proceed from the principle of equality of parents in relation to a common child and give the opportunity to see someone who does not live with him together. At the same time, family law expressly provides for the circumstances, taking into account which the court unambiguously refuses to communicate with children. So, if there is a direct or indirect threat to the mental or physical development of a minor due to communication with a particular person, the court refuses to satisfy the claim.

Based on judicial practice, plaintiff parents are denied meetings with the child if:

there is indisputable evidence of a negative impact - inclination to vagrancy, committing an offense or a crime;
provided evidence of abuse by an adult, not necessarily physical but possibly mental. For example, when a parent induces to have sexual intercourse with him or with other persons;
if there is evidence that the parent interested in satisfying the claim is registered in a psychiatric or narcological dispensary, is prosecuted for intentional crimes, violates public order, etc.

Of course, all circumstances must be taken into account in the aggregate. So, if a person was brought to administrative responsibility for speeding, this cannot be the basis for a ban on seeing a child. At the same time, repeated prosecution for drinking alcohol in public places may alert the judge and take the side of the mother with whom the minor lives.

The opinion of the representative of guardianship is of no small importance for the court decision.. In the course of preparing for the case, the employees of this body have the right to request almost any information about the family and about the parents separately. If the facts of offenses or crimes against children are revealed, guardianship has the right to apply to the investigative committee with a statement to initiate a criminal case, while at the same time initiating a claim for deprivation of parental rights.

Execution of a court decision

Like any court decision in cases of another category, the establishment of a procedure for communicating with a child is binding on both parties. If it is not executed on a voluntary basis, the parent concerned has the right to receive a writ of execution and send it to the bailiffs for enforcement. In addition, at the request of the person, the court may send the sheet to the UFSSP on its own.

After initiation of enforcement proceedings the bailiff is obliged to take measures to ensure that the order of communication is respected- one of the former spouses should not interfere with meetings with the child, and the other spouse must strictly comply with the conditions that the court has approved.

In practice, it is quite difficult to track the strict execution of the decision, because the bailiffs cannot be on duty around the clock at the addresses of the parents. When the father arrives for the child at the time appointed by the decision, they may simply not open the door for him.

Of course, you can call the bailiff directly to this address - the representative of the UFSSP has every reason to forcibly unlock the door and even break in with witnesses, with the permission of the head. However, such extreme measures are not taken, as they can injure the child.

It turns out that the authorities are powerless and cannot help the parent. And yet, it is necessary to insist on intensifying the work of bailiffs - establishing contact with the other side, being present at negotiations and contributing in every way to resolving the conflict in most cases leads to a positive result.

In some situations, a fairly effective method of persuasion is to explain responsibility for non-execution of a court decision:

the bailiff has the right to draw up a protocol on bringing the guilty person to administrative responsibility under Art. 17.15 of the Code of Administrative Offenses of the Russian Federation for non-fulfillment of non-property requirements contained in the decision ( fine up to 2500 rubles);
with the participation of guardianship and guardianship authorities, administrative liability may be initiated for failure to fulfill obligations under Art. 5.35 of the Code of Administrative Offenses of the Russian Federation ( fine up to 3000 rubles, in case of repeated violation - up to 5000 rubles or arrest up to 5 days);
a parent who is not given the opportunity to communicate with the child, approved by the court, has the right to apply again to the court, but with an application for the transfer of the child to him, in accordance with Part 3 of Art. 66 RF IC.