Victoriia Varienikova specifies three ways to deal with problem regarding which of the parents the child should live with
Conflicts between the parents deciding on which of them the child should live with constitute one of the most complicated and sensitive issues of family law to be addressed not only through the lens of law.
Sofiya Law Firm associated partner and advocate Ms Victoriia Varienikova has told about possible ways to address the issue on Ask A Lawyer TV-show ran on Pravo TV.
Even the law does not give a cut and dried solution to the problem. The lawyer pointed out that a legal basis for the resolution of such conflicts is provided by the Family Code, the Convention on the Rights of the Child, and the Declaration of the Rights of the Child. The point is that letter No. SH-16216/10.2 of the Ministry of Justice, dated 19 August 2015, determines the status of the Declaration as that of soft-law meaning that the document should be applied but it is not mandatory, Ms Varienikova said. Many judges and advocates insist on the application of principle 6 of the Declaration, saying that a child of tender years shall not, save in exceptional circumstances, be separated from his mother. However, there are cases when judges elect not to follow that principle. In fact, the father too is fully entitled to have the children living with him where he derives sufficient income, does not abuse alcohol, maintains good relationships with, and is treated favourably by, the children.
According to the expert, there are three possible ways to resolve a similar conflict. The most constructive solution to the problem is to execute a notarised agreement for the education and maintenance of, and communication with, the child. Such document may specify the amount of the child maintenance payment, additional child-related costs, and the frequency of contact with the child, and the list and scope of relevant obligations. 'If the parties endeavour to perform the agreement, it will be a meaningful way to serve the conflict,' Victoriia states firmly, calling the parents to choose this option to avoid causing psychological trauma to the child.
But, where emotions interfere with the amicable settlement, the parties still have two options to address the issue. The first one is about to seek assistance from the children's service offices. According to the lawyer, this solution is controversial since the parents do not comply in practice with the service's resolutions and the latter therefore fails to provide any help. So, the second option — to go to the court — seems to be the real solution because a judgment is the best motivation for the parents to be disciplined.
Removal of a child from custody can be a drastic measure. This process requires the involvement of prosecution offices. Such measure can be used where one of the parents takes an unduly active interest in the education of the child without the other parent's consent. Such conduct can be legally classified as abduction.
Ms Varienikova pointed out that the parents should decide collectively on their child education and maintenance in accordance with the Family Code. 'It means that the parents should consult each other. In addition, they are required to consult their child since he or she attains the age of 10. Including on who the child should live with. Who of the parents the child favours, who is of more interest for the child, and who of the parents contributes more to the development of the child,' she explained. From the age of 14 the child may protect his or her rights in court.'
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