How can you lose custody of a child
7 Ways To Lose Custody of Your Child: Moms and Dads
Parents often wonder how a mother can lose custody of her child. The truth is mothers can lose custody in the same way as fathers.
It's a common misconception that family courts favor mothers, when in fact, no state has laws favoring mothers in custody decisions. Many states actually have laws that prohibit family court judges from considering either parent's gender.
Custody cases in all states are decided based on the child's best interests.
Contrary to popular belief then, a mother — just like a father — can lose custody if the court decides that it's best for the child.
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It's generally considered best for both parents to be involved in their child's upbringing. When a parent loses custody, judges still typically order some limited parenting time for them, such as supervised visitation.
Family courts often set conditions to allow the restricted parent to eventually earn unrestricted or additional time with the child. For example, if a mother loses custody for drug abuse and has supervised visitation, the court may allow her to have unsupervised visits after completing addiction treatment and participating in drug testing.
How a mother or father can lose custody
In all states, the court's primary concern is the child's physical safety and caretaking needs. Family courts also ensure that children have stable homes and are secure with both parents.
If a mother or father poses a risk to their child's safety or security, the other parent can ask the court to order sole physical custody to restrict the unsafe parent's time with the child and sole legal custody to limit their role in making decisions about the child.
1. Abusing or neglecting the child
If a parent physically abuses or neglects their child, courts typically award sole custody to the other parent.
Child abuse is defined as any non-accidental physical harm to a child caused by a parent or caregiver. It includes hitting, punching, whipping, burning, hair pulling, shoving, throwing, choking and any other action that causes physical injury. Physical discipline (e.g., spanking) is not considered abuse if it does not injure the child. (However, experts recommend non-physical discipline.)
Sexual abuse occurs when a parent or caregiver uses a child for sexual purposes or involves the child in sexual acts. It also occurs when an older or more powerful child uses a younger child for sexual acts. Parents who sexually abuse their child or knowingly put them at risk of sexual abuse typically lose custody and, often, parental rights.
Emotional abuse includes not offering affection, shaming the child, telling them they're unwanted, yelling at them and keeping them isolated from others. Courts consider emotional and psychological abuse when determining custody, especially if a parent has mental health issues that negatively impact their parenting (e.
g., if a parent is a narcissist).
Neglect is a form of abuse in which a parent fails to meet the child's care needs. Physical neglect includes not caring for the child's hygiene and not providing adequate shelter, food or clothing.
Leaving a child alone or with inadequate or dangerous caregivers is also considered neglect. Educational neglect occurs when a parent doesn't enroll the child in school, allows them to miss a lot of school or ignores their special education needs. Medical neglect is failure to ensure the child receives necessary or recommended medical care.
2. Using alcohol or drugs irresponsibly
If a parent's alcohol or drug use impacts the child, or if a parent has untreated alcohol or drug addiction, courts will most likely restrict their parenting time to supervised visitation. Illegal drug use, even if the parent hasn't been convicted of a drug crime, can also cause a parent to lose custody.
Additionally, many states have laws addressing child custody and convictions for driving under the influence (DUI).
In Arizona, for example, the court can deny or restrict parenting time for a parent who has a DUI conviction within 12 months of the custody dispute.
If a parent who formerly abused alcohol or drugs has received treatment and is otherwise a safe parent, courts will most likely not restrict their custody, especially if they've been in recovery for a significant amount of time. The court may require drug testing or evidence of ongoing treatment.
How cannabis use impacts custody depends on the state's laws and if the parent's use affects the child. Like moderate and safe alcohol use, the court may not consider it a risk if the parent uses it legally, safely (e.g., no driving under the influence) and only when they're not around the child.
However, if the parent uses cannabis illegally or endangers the child through their use, the court may limit their custody. It's also important to remember that cannabis is still illegal under federal law, even in states that have legalized.
Depending on the court and judge, even legal recreational use could be viewed as criminal activity that endangers the child.
3. Abducting the child
Parent–child abduction — also called parental kidnapping and custodial interference — is a crime that occurs when a parent keeps the child from the other parent with the intent of interfering with that parent's custodial rights.
When this happens, the parent who abducted the child often loses custody, especially if they took the child over state lines or to another country, or if they caused the child psychological or physical harm.
However, if the victim keeps the child away from the other parent in order to protect themself or the child from abuse, the court may not consider it a crime or hold it against them in custody decisions.
4. Disobeying court orders
Custody orders — often issued in the form of a parenting plan and a parenting time schedule — are legal mandates that both parents must follow. Depending on the number and severity of the violations, disobeying court orders can result in loss of custody and even criminal charges.
For example, repeatedly being very late to drop off the child is not only disobeying court orders, it can be considered custodial interference or parental kidnapping, which are crimes.
Violations prevent effective co-parenting and can negatively impact the child, so courts take them seriously and often limit the custody of the violating parent.
Disobeying child support orders, however, is typically not grounds for losing custody. A parent who fails to pay child support may face civil or criminal charges, but courts do not take away their parenting time. Additionally, the other must still follow the court orders, including the parenting schedule.
5. Interfering in the child's relationship with the other parent
Family courts emphasize the importance of children having ongoing, healthy relationships with both parents. This is why joint custody is the most common arrangement. It's also why a parent who tries to minimize the other parent's role in the child's life without a reasonable cause (e.
g., protecting the child's safety) may lose custody.
In addition to preventing the child from seeing the other parent, interfering with the child's relationship with the other parent includes badmouthing them to or in front of the child, lying about them and discouraging the child from wanting to spend time with them.
Parental alienation is a severe form of interference in which a parent deliberately manipulates their child to turn against the other parent. There are currently no state laws that specifically address parental alienation, but many child custody experts consider it abuse. Family court judges often rule against the alienating parent and may order individual or family counseling.
6. Lying to the court
Lying in court paperwork or to the judge can also impact custody. While lying to the court (perjury) is a crime, family courts rarely pursue charges against a parent for lying. Instead, judges consider the dishonesty evidence that the parent won't support the child's relationship with the other parent or co-parent effectively.
In these situations, judges often rule in favor of the other parent.
In particular, courts do not look favorably on parents who lie about child abuse or domestic violence. Many states, including California, Florida and New York, have laws that empower judges to restrict custody for a parent who knowingly makes false abuse allegations.
7. Generally putting the child at risk
Other behaviors and parenting issues that put the child's physical and emotional well-being at risk can also cause a parent to lose custody.
Convictions for crimes or evidence of criminal activity, especially if the crimes are violent or if the victim was a child, typically cause a parent to lose custody.
When evaluating possible risks to children, courts also consider who lives in each parent's home and who spends time around the child. For example, if a parent's romantic partner has a criminal record or abuses drugs, judges often consider this a risk to the child and limit that parent's custody.
Irresponsible parenting — e.g., having lax rules, encouraging reckless behavior, not monitoring media content — can also be used as evidence that a parent isn't adequately caring for their child. If the irresponsible parent puts the child at significant physical, emotional or psychological risk, courts may limit their custody and order them to complete parenting classes.
Unemployment in and of itself will not cause a parent to lose custody. However, if a parent is unable to financially care for their child and issues of neglect arise, a judge may award custody to the more financially-stable parent. A parent who pays child support must still make payments if they lose their job, but they can ask the court to modify their child support order when they have an involuntary job loss.
Child custody evaluations
When the child's safety is a concern, disputed cases typically include a custody evaluation, in which a court-ordered expert (often a mental health professional) evaluates parents' ability to adequately care for their child.
The evaluator reviews the family's records and interviews the parents. Often, they also interview the child and others who know the family. The evaluator writes a report for the judge that summarizes everything and makes custody recommendations. Judges don't always order what the evaluator recommends, but they typically give the reports great weight.
Either parent can request an evaluation, and judges often order them of their own accord when they need more information. In many courts, custody evaluations are automatic if child abuse is alleged or suspected. Courts may also appoint a guardian ad litem to investigate the family and represent the child's best interests in court.
Modifying orders
Either parent can ask the court to modify existing custody orders and request sole custody. If the child is in immediate physical danger, courts can issue an emergency order to protect them from the unsafe parent.
Remember that family courts don't take what parents say at face value — they require proof (evidence) of every claim made in court paperwork and proceedings.
In addition to reports from custody evaluators, common custody evidence includes photos, emails, text messages, social media posts, family calendars and official records (e.g., medical, school, criminal, child protective services).
The tools you need to seek custody
The Custody X Change app has many features that help you organize the evidence you need so you can seek custody and help secure your child's safety.
- Create a detailed parenting plan that spells out every aspect of co-parenting in airtight legal language and shows the judge your competency.
- Make a custom parenting time schedule that meets your child's needs and supports their relationship with the other parent.
- Keep a custody journal to electronically organize evidence, document incidents and keep a record of parenting plan violations.
- Track actual parenting time and get reports showing parenting time violations.
- Use the parent messaging tool to keep an accurate record of your conversations with the other parent.
- Link your account to your lawyer's and print your journal, reports and messages so you can submit them to the court as evidence.
Use Custody X Change to stay organized and get what's best for your child.
Custody X Change is software that creates parenting plans and custody schedules.
Make My Schedule and Plan Now
Custody X Change is software that creates parenting plans and custody schedules.
Make My Plan8 Reasons to Lose Custody of a Child That May Surprise You
by B. Robert Farzad
What are the reasons to lose custody of a child?
Some of the reasons that cause a parent to lose custody of a child will surprise you. Some of the reasons will not.
Each of the reasons to lose custody of a child will educate you on what it takes inside a family court for a judge to take custody away.
This article provides insight on what the most common and uncommon reasons are a parent may lose custody of a child.
It also explains how particular facts of a case may have an impact on a family court's decision. We even give you examples!
What will you learn in this article?
You will learn that losing custody of a child is often the result of child abuse, neglect, knowingly false allegations of child abuse, or a finding of domestic violence.
These are all actual or potential grounds to get full custody of a child.
And when you have proper legal grounds and evidence to back up your claims, you give the judge a reason to change custody. This is true even if you and the other parent have a court order for shared parenting time. For example, even if you and other parent have a 50/50 custody schedule, the other parent can lose custody of the child for the proper reasons.
You will also learn how a failure to co-parent and even parental alienation could be a reason to lose custody of a child.
The reasons to lose custody of a child written in this article are not the only ones that exist.
This article is intended for those who have a child custody matter in California or expect to have one.
What we write only applies to California. This article is not legal advice. Please don't use it as a substitute for legal advice. Testimonials are not a guarantee, warranty, or prediction regarding the results you may obtain in your case. Every case is dependent on its own facts.
Here is a handy list of topics we cover.
Child Custody Table of Contents
If you want to skip ahead, click on each chapter image to scroll down to that section. Within each section, we get into what it may take to lose custody of a child if a parent commits any of the following acts.
If you prefer watching a video on what it takes to lose custody of a child, enjoy the video below. If you really want to understand the subject on a deep level, watch the video before reading this article.
Play Video
We hope you enjoy this video on some common and surprising reasons to lose custody of a child.
Here is also a transcript of the video for those with disabilities. Some parents should lose custody of a child
If you are facing an abusive, neglectful or unreasonable parent in a child custody case, you need help.
It takes courage to stand up to a bully.
A parent that has been physically abusive or cowardice enough to make knowingly false allegations of abuse should not have the same parenting time as a kind and loving parent.
What does it mean to lose custody of a child?
This article focuses exclusively on what may happen in family court. We don't address dependency court (sometimes called children's court) or criminal law matters. We also don't write about parental rights termination cases.
In family court, a judge may award joint or sole legal custody and joint or sole physical custody.
Parenting time (also called visitation) may be equal or primarily to one parent.
Losing custody of a child generally means loss of joint legal and/or physical custody.
In addition, visitation may become limited or supervised.
Child abuse is the number one reason to lose custody of a child
A very common reason to lose custody of a child is child abuse.
Physical child abuse often results in wounds, scars, bruises and burns. Abusers may use their hands, feet or objects such as belts.
Physical child abuse can be disguised as corporal punishment. There is a line between appropriate discipline and abuse. Some parents choose to cross that line. This is often a result of poor anger management.
Physical abuse sometimes results from the parent's own mental or psychological disorder. It is common for a parent who is physically abusive to have been physically abused as a child. This is called a cycle of abuse.
Other parents suffer from a lack of anger management skills that manifests itself into abuse. The abuse may manifest from substance abuse.
There are a variety of reasons parents abuse their children. All of them are misguided.
Judges rarely hesitate to take away custody of a child from a physically abusive parent.
Why do Parents Abuse Their Children?
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Parent or parents were themselves abused as children
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Lack of anger management
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Psychological disorder
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Drug or alcohol abuse
Child abuse should be reported
Child abuse should be reported to the proper authorities including law enforcement and the local social services agency.
Some individuals are mandatory reporters under California law.
Within the context of a family court proceeding, California law is very clear that physical abuse is a proper reason to lose custody of a child.
Both legal custody and physical custody may be lost as a result of child abuse. Parenting time may be limited to supervised visitation or no visitation at all.
A physically abusive parent may lose all contact with a child depending on the abuse's severity and frequency.
It usually starts with a request for order
Losing custody of a child during a divorce or parentage proceeding often results from bringing the issue to the Court's attention.
A parent who alleges physical child abuse against the other parent typically files a request for order.
This request includes a declaration and supporting evidence of the abuse. The request for order is sometimes filed as an emergency application if the parent needs immediate orders.
An emergency application requires the child or children to be in imminent threat of harm.
If there is no imminent threat, a regularly noticed request for order is filed.
At a hearing, a family law judge determines whether there is sufficient evidence of abuse and makes appropriate orders.
A judge may believe a child custody investigation or private child custody evaluation is necessary. If so, he or she may appoint a private child custody evaluator or a child custody investigator.
Such persons look into the abuse issues and report back to the court. A judge also has the power to contact social services or get the law enforcement involved.
A family law judge's focus in a child custody case is the child's best interest. That focus means whatever steps are reasonably necessary to protect the child are usually the ones implemented.
Sexual abuse is a proper reason to lose custody of a child
Much of what we have written about physical abuse applies to sexual abuse. Sexual abuse is clearly a reason to lose custody of a child.
Sexual abuse takes several forms.
It can involve overt and generally forced sexual acts or indecent exposure. Sexual abusers are found in every age group and demographic. There is no one profile fits all.
Sexual abuse should never be minimized or tolerated.
Any parent who allows sexual abuse to continue is him or herself engaging in an act of serious child abuse through neglect.
Such a parent may find him or herself losing custody, especially if law enforcement and social services gets involved.
Child abduction is a second common reason to lose custody of a child
Child abduction may have different meanings to different people.
Our focus is how California Family Code 3048 defines it. That is a very long code section so we won't place its text here. We do however encourage you to read it.
Child abduction is a reason to lose custody of a child.
Whether it results in a total loss of legal and physical custody or a temporary one depends on the severity of the abduction.
Certainly, there is a difference between taking and concealing a child from one California county to another and then returning the child when the perpetrator realizes the dangerous nature of his or her act versus abducting a child and taking that child to a foreign country and refusing to return him or her.
The method to obtain orders against abduction are similar to any other child custody case.
The California Judicial Council has also created forms for abduction cases that can be used.
Two of the forms are identified as FL-312 and FL-341(b) forms.
The means to obtain sole legal and physical custody of a child as a result of threatened or actual abduction are beyond this article's scope.
Our law firm is experienced in such matters and you should hire an experienced family law attorney for any such case.
False allegations of child abuse should be a reason to lose custody of a child
A parent that makes a knowingly false allegation of physical or sexual abuse against the other parent is just as dangerous as a parent that abuses a child.
False allegations of abuse against a parent is a proper reason to lose custody of a child.
Of course, that depends on the seriousness of the allegation and whether a parent can prove a knowingly false allegation.
One example is a false allegation of sexual abuse. California Family Code 3027.5 states the following and pay special attention to the bolded sections. This is the code section as of January 1, 2021 so it may be different by the time you read this. Code sections may change year to year.
"(a) A parent shall not be placed on supervised visitation, or be denied custody of or visitation with the parent's child, and custody or visitation rights shall not be limited, solely because the parent did any of the following:
(1) Lawfully reported suspected sexual abuse of the child.
(2) Otherwise acted lawfully, based on a reasonable belief, to determine if the child was the victim of sexual abuse.
(3) Sought treatment for the child from a licensed mental health professional for suspected sexual abuse.
(b) The court may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that the reporting parent knew was false at the time it was made.
A limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or a statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state's policy of ensuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020."
When do False Allegations of Child Abuse Result in Supervised Visitation?
Substantial Evidence of the Following
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Intent to interfere with the other parent's lawful contact
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Reporting of a false child, sexual abuse allegation
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Knowledge the child, sexual abuse allegation was false
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Child neglect may be a reason to lose custody of a child if it is serious
Child neglect may be a form of abuse. We call it "neglect" because this form of abuse generally results from a failure to act.
Failure to properly feed, clothe or groom a child may be neglect. Failure to provide a sanitary and safe living environment or the necessities of life may be neglect.
Child neglect may be a reason to lose custody of a child if that neglect endangers the child's health or safety. This is especially true if the neglect is pervasive.
Neglect may be difficult to prove
If a child is malnourished, he or she may look very thin, lack energy or become ill more often than what is normal. That, by itself, may not be apparent to anyone but those who see the child on a frequent and regular basis.
A non-neglectful parent, an older sibling, a grandparent who sees the child regularly, a teacher and those actively in the child's life are the best at noticing neglect.
Doctors and other health care professionals who examine a child, especially during examinations, are also valuable in this regard.
Some parents ignore neglect. They do not take any action to stop it.
That is the same as ignoring abuse. If the neglectful parent will not change his or her ways, much of the same methods to stop abuse are available to the other parent.
Domestic violence raises a presumptive reason to lose custody of a child
Domestic violence and child custody sometimes collide in a family law case. And when they do, much of the focus becomes whether there has been a finding of domestic violence against the accused parent and, if so, whether that is a sufficient reason to lose custody of a child.
On this topic, we have written an article about the impact of domestic violence on a child custody case. We encourage you to read it because it provides a good summary of California law on this issue.
Is violating a child custody order a proper reason to lose custody of a child?
Violating a child custody order can range from the technical and very minor violation to a willful and significant one.
Whether violating a child custody order is a proper reason to lose custody of a child depends on the violation's nature and extent.
Let's take two examples.
For our first example, assume a parent is late to custody exchanges
That parent at least one to two times per week will arrive 15-20 minutes late.
This aggravates the other parent and the other parent wants the tardy parent to lose custody of the child during that day the parent is late.
Will that happen?
Unless the court order specifically carves out forfeiture of visitation on that day, it is not likely.
And the problem the other parent faces is if he or she refuses to give the tardy parent custody of the child, that other parent may be accused of violating the other's custodial time.
There are ways to avoid these problems and the best one is to request the court make orders that a parenting time is forfeited if a parent is more than a certain number of minutes late.
For our second example, assume a violation of joint legal custody
Assume a parent makes significant decisions in a child's life without consulting with the other parent even though both parents share joint legal custody.
This includes major medical decisions or educational ones such as changing a child's school.
It may involve placing the child in extracurricular activities that interfere with the other parent's custodial time. Are these reasons to lose custody of a child? It may be.
Hopefully, that joint legal custody order is well drafted. A parent who often, willfully violates the other parent's joint legal custody rights should lose legal custody under most circumstances. It is possible the violation was not willful and isolated.
It is also possible the Court does not believe the violation was significant enough to merit a loss or change of custody. The Family Court has broad discretion on child custody cases.
The actual factual situation should carefully be analyzed.
But in cases of a willful violation, especially those that are not isolated, seeking a modification from joint legal custody to sole legal custody may be appropriate. After all, what is the point of a court order for joint legal custody if willful violations don't have consequences?
Separate from a child custody modification, the non-violating parent may have a case for a family law contempt action against the other parent.
Under what circumstances should a refusal to co-parent be a reason to lose custody of a child?
Co-parenting problems are common. Some parents simply cannot do it and may need to consider parallel parenting plans.
But is a refusal to co-parent a reason to lose custody of a child?
The answer is it depends on whether that refusal to co-parent rises to the level of impacting the child's best interest.
This includes the child's health, safety, education or general welfare. Since the best interest standard in child custody cases is the foundation for a family law judge's decision, the lack of co-parenting must be serious.
Here are some examples:
Poor co-parenting that likely will not lead to losing custody of a child
One parent disagrees with the general choice of clothing or amount of makeup for their daughter.
He or she attempts to communicate with the other parent but the other parent refuses to do so because he or she believes their daughter is old enough to make those choices.
While this may be a lack of co-parenting, it is unlikely such a failure to co-parent would result in loss of custody unless the clothing or makeup issue is an extreme circumstance.
Poor co-parenting that may lead to losing custody of a child
The parents have a 12 year old child that is getting the grade F in 4 out of his 5 classes and is seriously acting out in class, getting into fights and regularly being disciplined.
The non custodial parent is very concerned and has learned much of the problem arises from the child's home life and not getting his homework done while with the custodial parent.
The non custodial parent has attempted to co-parent but the custodial parent doesn't want to hear it and refuses to communicate with the non-custodial parent.
Is this level of refusing to co-parent a proper reason to lose custody of a child?
The answer is probably yes, although there may be solutions less extreme than losing custody of a child.
The court may order the noncustodial parent to see the children more in the evenings and after school so that parent can attend to homework.
The court may give discretion on educational related decisions to the non-custodial parent and take parts of the custodial parent's joint legal custody away.
It doesn't always have to be all or nothing. However, in extreme situations, that may be a reason to lose custody of a child.
How does parental alienation factor into losing custody of a child?
We have written about the topic of parental alienation in articles that discuss the topic of what is parental alienation and how to stop parental alienation.
Like some of the other reasons to lose custody of a child, whether parental alienation is enough depends on the nature and extent of it.
Our family law attorneys have seen and handled extreme cases. We have successfully modified child custody as a result of parental alienation.
We have also seen situations where the alienation had taken place for so long and was so pervasive that by the time the alienated parent came to us, there was not much we could do.
This is especially true with older, teenage children.
Parental alienation is similar to neglect because it is not always apparent. It can take place for years without being noticed by anyone other than the other parent or those very close to the child.
An alienated parent must act quickly and decisively. We strongly encourage you to read the parental alienation articles we have written to learn more.
Are there other reasons to lose custody of a child that we have not discussed?
Yes. Clearly, no article will cover every situation. Our family law firm is very experienced in handling child custody cases.
Sometimes, we have filed a request to take custody away from a parent who refuses to act consistent with the child's best interest.
Whether your case has a proper basis to make such a request is a fact specific question.
You will likely not find answers to that question on the internet. You need experienced and knowledgeable legal representation.
We hope you enjoyed this article
Please visit us often for additional informative articles and guides on California family law.
Want to discuss your specific case? Please contact our family law attorney if you have a family law matter in Southern California.
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what does a guardian do, what payments and benefits are due, who can be taken under guardianship
Guardians are appointed if you need to take care of a child who is left without parents, a disabled person or an elderly person.
Natalia Bogatyreva
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A guardian is a person who will solve the everyday problems of the ward, deal with government agencies and protect money and property from fraudsters.
The guardian may receive money for his work, or may do it for free - for example, if he is a relative of the child. Guardians of children can go on maternity leave, spend maternity capital and apply tax deductions.
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Take custody of a child or adult
Reason. Civil Code of the Russian Federation Art. 32, RF IC Ch. 20, Code of Civil Procedure of the Russian Federation Ch. 31
How it works. Guardianship can be established over:
- a child under 14 if he has no parents or they do not take care of him;
- a child whose parents are under 16;
- an adult, if due to age or illness he does not understand what he is doing.
Children can be taken into custody if they are left without parental care - that is, the parents died, lost parental rights, went to prison, went missing, or are completely unknown. The decision is made by the guardian. The guardian takes the child into his family, children can call adoptive parents mom and dad, but this is different from adoption. The child does not change his last name, he retains the status of an orphan child and the right to state benefits.
Guardianship of elderly relatives is established when they lose their legal capacity: they stop recognizing their loved ones, forget where they are and what day it is.
Such people, like young children, are considered incompetent. For important decisions and legal actions, they need a guardian. Incapacitated relatives can be taken under guardianship only after a court decision. Usually, relatives first contact the guardianship authorities, where they are told about the procedure and given the necessary forms. The court makes a decision, having studied the conclusion of a psychiatrist - without his participation, guardianship cannot be established.
Guardianship is similar to guardianship. It is set when a person can make important legal decisions himself, but someone has to control this. Guardianship is established over a child aged 14 to 18 years. You can become a caregiver for an adult with a mental disorder. What is preferable - guardianship or guardianship - is assessed by a psychiatrist and a court. In family relations, both guardians and trustees basically have the same rights. But when it comes to contracts, the rules change: the guardians themselves sign everything on behalf of the wards, and the trustees only give their consent to this.
See also:
- How to take a child into custody
- How to recognize a person as legally incompetent
Refuse custody
Reason. Federal Law on guardianship art. 29
How it works. You can only take someone into custody of your own free will, so you can refuse it at any time. Even if the ward is a relative, you can change your mind and stop being a guardian. It is enough to apply with a statement to the guardianship authority. Application must be accepted: if the guardian does not want to fulfill his duties, no one can force him. The guardianship authority will be looking for a new guardian.
Guardianship authority is a code name. In different subjects of the Russian Federation, these powers belong to different bodies. Somewhere these are state bodies, somewhere - municipalities. Where to go, you can check with the nearest administration.
It may be that custody of children will be supervised by one body, and of adults by another.
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Get free psychological training
Foundation. Post. Government No. 423, paragraph 14, sub. "b", post. Government No. 927, paragraph 14, sign. "b", order, approved. Order of the Ministry of Education and Science No. 235, paragraph 5
How it works. Guardianship authorities are required to provide psychological support and special training to anyone who wants to become a guardian. This also applies to those who take children into their families, and those who are preparing to take care of a person with a mental disorder. Psychological courses should be free.
For those who are preparing to take a child into a family, this is a mandatory requirement - they go through a foster parent school.
Only close relatives of the child who arrange custody of him, and those who already have experience in adoption or custody of children, can refuse. Close relatives are grandparents, siblings and siblings. However, they can also attend foster parents' school for free if they feel the need. The program includes blocks not only in psychology, but also in jurisprudence and medicine. You can choose any school, regardless of residence, for example, in Moscow. The school attendance certificate is attached to the application to the guardianship authority along with other documents.
Those who are preparing to obtain guardianship of an adult can also attend educational seminars and training sessions. A certificate of completion of training can be submitted to the guardianship authority along with the application. The rules say that it is applied when available.
See also: What does a psychotherapist treat, how much does a therapy session cost? Federal Law on guardianship art.
15 p. 2, Art. 9 pm 1
How it works. Guardians are considered the legal representatives of the wards. This means that instead of wards, they participate in various legal procedures. They do not need any power of attorney for this. The authority is confirmed by the act on the appointment of a guardian.
For example, an apartment was flooded, which is registered to an elderly grandfather. His son, who has taken custody of his elderly father, can file documents to court for damages himself. Or the child received an inheritance - his foster mother can go to the notary herself so that the child accepts this inheritance.
If the child is under 14 years old or the citizen is declared incompetent, the court may, at its discretion, involve them in the case. If the child is already 14 years old or the legal capacity is partially limited, the court can no longer, but is obliged to do this. This is an additional form of control to ensure that the interests of the wards are respected.
Certain actions in court can only be performed by guardians with the permission of the guardian. We are talking about the refusal of a claim, the recognition of a claim, the conclusion of a settlement agreement, if at the same time the value of the property of the ward may decrease. For example, the guardian wants to recognize the claim for the cancellation of the donation agreement, according to which the ward was presented with an apartment. For such a procedure, the participation of guardianship will be required, because the interests of the ward may suffer.
If the other party to the case is the guardian's spouse or close relative, you will need to issue a power of attorney for a representative. In this case, the guardian cannot represent his ward in court.
FZ on guardianship art. 15 hours 2
How it works. The guardian does not need powers of attorney to represent the interests of the person he is guarding: he is already his legal representative.
Unlike a trustee, the trustee concludes contracts himself. The trustee only consents to the contract being signed by his ward.
For example, a man has taken custody of an elderly mother and wants to pay for her treatment in a paid clinic. He will sign the contract with the clinic himself and on his own behalf, indicating that he is acting in the interests of his mother, because he is her guardian.
The same man took custody of his nephew, he is 15 years old. The nephew will sign the contract with the educational center for paid preparation courses for the Unified State Examination, and the trustee will give his consent to this in writing.
Guardians and trustees do not need a power of attorney to confirm their authority, only an act of appointment.
The law established restrictions: a guardian cannot, while representing a ward, make a transaction with himself, his spouse or a close relative. This does not apply to donations and transfers of property for gratuitous use if the guardian gives or allows the use.
You can give a ward an apartment, a car, and books with toys.
See also:
- How to conclude and how to terminate the contract
- Who is responsible if the child breaks the phone
Manage the money of the ward
Reason. Civil Code of the Russian Federation Art. 37, Federal Law on guardianship art. 19
How it works. The guardian can spend the money of the ward in his interests or otherwise dispose of it - for example, invest. How this will be organized and whether it is necessary to negotiate with the guardianship authority depends on where the money comes from.
Pensions, allowances, alimony, any other social payments that are paid for the maintenance of the child, the guardian can freely spend for these purposes. You do not need to obtain permission from the guardianship authorities, although later you will need to report on these expenses.
The guardian opens a special nominal account in his name for payments for the maintenance of the ward. No other payments will be credited there. To open an account, the bank will need an act on the appointment of a guardian and information about the ward; permission for guardianship is not required for this.
There are no restrictions on the amount that can be withdrawn, but once a year, before February 1, the guardian must report to the guardianship authority on how he spent the money:
- Report form, if the ward is a child
- Report form, if the ward is adult
Supporting documents are attached to the report: receipts, checks. Expenses for food, basic necessities and minor household needs do not need to be confirmed, they have no right to demand such confirmations.
If the ward has income, for example, from renting an apartment registered to him, the guardian can also dispose of such income, but with two conditions:
- Exclusively in the interests of the ward.
- With prior permission from the guardianship authority.
It turns out that even if the guardian wants to buy something useful with this money or organize a trip for the child to a sanatorium, you will first need to obtain written permission from the guardianship authority.
See also:
- What benefits are provided to orphans and how to get them
- How much money to give teenagers for pocket expenses
Sell the apartment of the ward with the permission of guardianship
Reason. Civil Code of the Russian Federation Art. 37, Federal Law on guardianship art. 20 How it works. If the ward has real estate, the guardian may sell or exchange it. However, for this you need to obtain permission from the guardianship authority. The authority will issue such a permit only if it is convinced that the interests of the ward have not been affected and his property has not decreased.
For example, if the apartment was changed to another, with a larger area, and the ward became its owner.
The cases when such permits are issued and when they are not vary from authority to authority, so it is better to find out in advance what practices have developed in your place of residence.
In the same way, permission must be obtained in order to rent or lease an apartment or other premises belonging to the ward, to issue a deposit.
See also:
- How to sell an apartment owned by a minor
- Why guardianship authorities may not allow the sale of an apartment
- How to sell an apartment without intermediaries
Receive money for guardianship every month
Reason. Federal Law on guardianship art. 16 hours 2
How it works. By default, guardianship is gratuitous. For example, if a son takes care of an elderly father or a grandmother takes care of a granddaughter who was left without parents.
In order to pay for guardianship, you need to conclude an agreement with the guardianship authority. An application can be submitted by any person who can be a guardian, but contracts are not concluded with everyone. In the subjects of the Russian Federation, there may be restrictions on who is paid for guardianship. For example, they may not conclude an agreement on paid guardianship with relatives - see the Code of the Omsk Region on Social Protection, Art. 42. Although the federal law does not contain such a ban.
The main form of paid care is foster care. There can be no more than eight people in it, including their own children. There are also foster families and other types of paid guardianship, for which there is no special name. In practice, a gratuitous form is often called guardianship, and a paid form is often called a foster family.
Usually they pay for child custody, but the law does not prohibit it if the ward is an adult. Clarify the requirements with the guardianship authority: submit a written application to receive a detailed answer with links to laws.
First, the guardianship authority must decide that the candidate has been appointed as a guardian acting for a fee. This is indicated in the act on the appointment of a guardian. On its basis, after 10 days, an agreement on paid guardianship should be concluded, usually on a foster family. If the guardianship body refuses to conclude an agreement and pay money, you can go to court and receive compensation for the time until there were no payments.
Foster parents receive a monthly remuneration and additional payments, the amounts are determined by regional laws. For example, in the Saratov region they pay 5404 R per month if there are less than three children, and 10 808 R per month if there are three or more children. For each child, they pay extra 1601 R per month. There are also benefits for utilities, medicines, cell phone payments - the foster parent receives compensation at his own expense. There are other surcharges as well.
Even if guardianship is ordinary, and not paid, it is possible to receive money from the state every month - at the expense of regional benefits.
They are paid depending on the policy and security of the subject of the Russian Federation.
In Moscow, 17,424 R per month is paid for one child under 12 years old, and 23,232 RUR per child from 12 to 18 years old. If there are many children in the family or a child with a disability, the payments are higher.
See also: Subsidy for housing and communal services
Live free of charge in the apartment of the ward
Foundation. Federal Law on guardianship art. 16 h. 3 and 4
How it works. The guardian of the child must live with his ward. If there is an adult under guardianship, there is no strict requirement, but cohabitation is welcome. So the guardian can take care of the ward, monitor his daily activities and help.
The guardian may take the ward to live with him or move in with him if he has an apartment or a house. This should be allowed by the guardianship authority - and entered into the contract.
There are two rules:
- The guardian receives the right to live in the apartment of the ward free of charge instead of remuneration under the contract of guardianship.
- There must be a reason for this. For example, the guardian lives far away from the ward.
Guardians do not receive the rights of a family member when they move in with the ward and are registered with him. That is, they do not have the right to participate in the privatization of the apartment. One guardian did this, and then the court declared the privatization agreement invalid.
Ruling of the Supreme Court of the Russian Federation of November 25, 2014 in case No. 78-KG14-36PDF, 683 KB
Base. Post. Government No. 397, post. Government No. 343
How it works. The Pension Fund pays benefits to those who care for the disabled and the elderly. It comes along with a disability or old age pension. Then the pensioner himself transfers the allowance to the one who cares for him.
Or does not transmit - as he wants.
Guardian allowance
| Carers | How much they pay per month |
|---|---|
| Disabled child | 10 000 R |
| Disabled person of the first group since childhood | 10 000 R |
| Disabled person of the first group | 1200 Р |
| Elderly person in need of care | 1200 Р |
| Elderly over 80 years old | 1200 Р |
Child-disabled
10 000 000 R
Disabled of the first group from childhood
10 000 R
Disabled of the first group
1200 R
Emergency person who needs departure
9000 1200 PElder 80 years
1200 R
The pension fund pays benefits only to those who:
- Does not work, including under a civil law contract.
- Does not receive a pension.
- Does not receive unemployment benefits.
- Does not receive remuneration under a foster family agreement.
I would argue with the last point, but there is a decision of the Supreme Court, which confirms that foster parents should not receive payments from the pension fund for the care of disabled children: they already receive remuneration for this as guardians.
Definition of the Armed Forces of the Russian Federation of July 11, 2016 No. 29-KG16-3PDF, 180 KB
See also: How to take care of an 80-year-old pensioner, so that the experience goes
Find out details about the child and his family before the establishment of guardianship
Foundation. Rules for the selection of guardians, clause 10.1
How it works. Before the guardian decides to take the child into his family from an orphanage or shelter, he can get all the information he is interested in about him: how the child developed, what he is doing with his studies, what diagnoses were made, how he got into a difficult situation, where his parents and who visits him.
This is important to make it easier for the child and caregiver to adapt to each other.
Some criteria can be set immediately when searching through data banks: age, gender, eye and hair color, presence of brothers and sisters. Employees of the guardianship and the institution in which the child is located will tell something. You can find out something personally when visiting the child, when the guardianship authority issues a referral. Getting to know the child personally is not only the right, but also the obligation of the future guardian.
If a candidate for guardianship has doubts about the veracity of the medical information provided to him, he has the right by law to conduct an independent medical examination of the child being placed into care. This can be done free of charge under the CHI policy or in a private clinic - at your own expense.
See also: How can I receive an inheritance from my biological father if he is not documented?
Do not give the child to relatives
Reason.
SK RF st. 148.1 p. 4
How it works. The guardian does not become a relative of the child. That is, the child's connection with his family is not interrupted. If the child has good relations with relatives, for example, a grandmother or brother visits him, the guardian is obliged to allow them to see and communicate. But the guardian determines the place of residence of the child himself. None of the relatives can pick up the child without the consent of the guardian and take him to him.
If the child is with relatives and they do not give it up, the guardian has the right to sue and demand the return of the child. Even if they are the child's parents. While the act on the appointment of a guardian is in effect, the child lives with him.
Moreover, if contact with relatives is not in the best interests of the child, the guardian may prohibit such contact. For example, if relatives lead an asocial lifestyle or set the child against the guardian.
True, in this case, relatives can complain to guardianship or go to court. Therefore, you need to justify your refusal. If the court obliges not to interfere with communication, you will have to comply with its decision so as not to lose the right of custody.
See also: Children's rights: protecting the rights of the child under 18
Determine where and how the child will study
Foundation. SK RF st. 148.1 p. 6
How it works. The guardian must take into account the recommendations of the guardianship authority when raising the child. But the final decision regarding the training is made by the guardian himself. He chooses whether the child will go to kindergarten, whether he will go to school or stay at home, on family education. At the same time, the child must receive a general education, that is, go through the school curriculum.
In family education, the child will study at home and take exams at school.
At the same time, you can get textbooks in the library for free and participate in Olympiads. Teachers do not come to home during family education, you need to organize the training yourself. Teachers come during home schooling - it can be issued if the child has a disease that prevents school attendance. All this is done by the guardian.
See also:
- How to transfer your child to family education
- How to legally not take your child to school
- Parents' rights in school
- What parents of first graders can demand from school
- How to save for children's education
Get a one-time allowance when applying for custody of a child Foundation
FZ No. 81-FZ art. 12.2, letter of the Ministry of Education and Science No. VK-911/07 How it works. When the guardianship is granted, the state pays an allowance to help the family.
The size depends on the state of health of children, their age, family ties between children.
In general, the amount of a one-time allowance for the transfer of a child under 7 years of age to a family is 20,472.77 R.
20,472.77 R
a lump-sum allowance for taking care of a child up to 7 years 904 9000 66 Р will pay if you adopt a previously taken under guardianship:
- a child with a disability;
- children over 7 years of age;
- children who are brothers or sisters.
These are the amounts of payments from February 1, 2022, every year they are slightly increased - they are indexed. The money is transferred to the guardian's account.
This is a special allowance for guardians and adoptive parents, parents are not paid. Although the amount is the same as at the birth of a child. If you first take the child into custody, and then adopt him, the allowance must be paid both times.
Receive benefits and payments for children
Reason. FZ No. 81-FZ art. 13, Federal Law No. 418-FZ, post. Government No. 384, post. Government No. 474, RF IC Art. 84
How it works. Guardians have many of the rights that are due to parents, as they take care of children, educate them, support and represent their interests. Financial support measures are various social benefits. Guardians do not receive only those payments related to pregnancy.
Benefits that do not depend on family income:
- Benefit for the birth of a child, if he was taken into care at the age of up to six months - 20,472.77 RUR. 31,282.82 R per month.
- Benefit for caring for a child whose father serves in the army on conscription, until the child reaches three years old - 13,894.61 R per month while the father is serving.
Benefits that pay those with little income:
- Putin's payments for children under 3 years old - a living wage per child once a month.
- Payments for children from 3 to 7 years old - ½ of the living wage per child once a month.
- Payments for children from 8 to 17 years old - ½ of the living wage per child once a month.
If the family is large or poor, then most likely there will be additional regional payments. Check this with the social security authority at the place of residence.
Guardians also have the right to receive child support. Such alimony is established by a court decision if the child has parents, but they evade maintenance. Alimony is transferred to the guardian to a nominal account, which he opens for payments to the ward. The guardian can spend them on the maintenance of the child without any permission.
See also:
- Payments and allowances for a child in 2020
- Calculator of Putin's payments for children
Dispose of the child's womb capital with the permission of guardianship 9002 20 9002 20
FZ No.
256-FZ art. 3 h. 4 and 5, Art. 7 h. 2, review of practice, approved. RF Armed Forces 06/22/2016 How it works. By default, the mother of a child has the right to maternity capital, but she cannot always use it. If a child has no parents, they are deprived of parental rights or restricted in their rights, the right to mother capital belongs to the child himself. And his guardians, including adoptive parents, dispose of it.
The guardian can direct the mother's capital funds for any of the purposes provided for by law, but for this he needs to obtain permission from the guardianship authority. In Moscow, such permission can be requested electronically.
Otherwise, the rules are the same as the general ones: maternity capital can be spent immediately if it is used to pay a mortgage, social adaptation of disabled children, preschool education, or Putin's monthly payments for a second child. In other cases, it can be spent only when the child is 3 years old, for example, to buy an apartment without a mortgage or pay for university education.
See also:
- Four ways to spend maternity capital on what you need
- How to get maternity capital and what to spend it on
- Who will receive maternity capital for the first child
- How did your maternity capital grow in 2005 9010 if there is a maternity capital
Use the benefits provided to mothers at work
Reason. Labor Code of the Russian Federation Art. 264
How it works. The Labor Code equalizes the labor rights of mothers and persons raising children without a mother, including guardians. Until the child is 3 years old, they have the right to:
- Take maternity leave and not work.
- Work part-time and receive child care allowance until the child is one and a half years old.
- Refuse to work at night, overtime, weekends and public holidays.
- Refuse business trips.
- Use breaks for feeding and work less without losing wages.
The guardian retains the right to part-time work until the child is 14 years old. The main thing is to agree on working conditions so that both the employee is comfortable and the employer can organize the labor process. The employer cannot refuse this right.
See also:
- Employees' rights on maternity leave
- How to switch from maternity leave to maternity leave
- Benefits for a single mother
- How to apply for a reduced working day for a three-year-old mother
Receive tax deductions for children
Reason. Tax Code of the Russian Federation Art. 218 p. 1 subp. 4
How it works. In terms of taxes, guardians have for the most part the same rights as parents. They pay the taxes of their wards at the expense of their money and can save on their taxes: reduce personal income tax due to the standard tax deduction, deduction for the treatment of children and property deduction when buying an apartment or share in the name of a child.
The standard deduction every month reduces the income of the guardian for the purpose of calculating personal income tax. Usually the tax is withheld at work. If two guardians are appointed, such as adoptive parents, each will be entitled to the deduction. The standard deduction can be received until the child is 18 years old. For the first and second child, the deduction is 1,400 R per month, for the third and following - 3,000 R. For disabled children, the deduction is larger: in addition to the standard guardian, the guardian will be able to reduce his tax base by 6,000 R.
For the standard tax deduction there are limits on the maximum amount. If you want to calculate how much you can save, use our calculator. It takes into account the features of the deduction for guardians.
You can get a tuition deduction if your child is in a paid educational institution. The limit for a guardian is 50,000 R per year for one child. Thus, from the cost of training within 50,000 R, it will be possible to return 13%, a maximum of 6500 R.
6500 R
the maximum tax that a guardian can refund annually for the child's education
By paying for the child's treatment, medicines and VHI, guardians can also receive a deduction. There is a general social deduction limit here: 120,000 R per year. This is the maximum amount by which you can reduce your income through paid treatment, the purchase of medicines and the registration of VMI. The maximum return is 15,600 R per year. But if the treatment was expensive, the limit does not apply and you can return up to 13% of the amount of expenses. In any case, no more than the amount that the guardians paid to the budget will be returned for the year.
cm. Also:
- All tax deductions for children
- Tax deduction for children: 10 questions and answers
- How to get a deduction for relatives
- How to save on property taxes 9005 90,000 defended the guardian in the dispute about the dispute about disputing custody of a child - Lawyer in Moscow
I had a case in which I was protecting the guardian of a minor child from the claims of the child's grandmother, who disagreed with the appointment of guardianship.
Despite not numerous claims of the grandmother, we managed not only to achieve a decision in our favor, but also to defend it in the appellate instance. The article also contains an impersonal court decision.
In this article you can find:
The gist of the dispute was that a client in the region took provisional custody of a child, and then custody. At the same time, the mother of the child was deprived of parental rights at the suit of the guardianship and guardianship authorities, the father was in prison, and the grandmother was not interested in the newborn child while he was in the boarding school.
In connection with the need for the subsequent adoption of the child, the guardian decided to file a lawsuit to deprive the father of the parental rights, which subsequently served as the motive for the grandmother to file a lawsuit against the guardianship and guardianship authorities to invalidate the decision to appoint preliminary custody of the child and subsequent guardianship .
Apparently the father, while serving his sentence for a crime, did not want to lose a formal extenuating circumstance: the presence of a minor child.
The plaintiff in the lawsuit referred to the fact that she had a preferential right to custody of the child, to violations of her rights, and also to the fact that she did not abandon the child. We filed objections to all the arguments of the statement of claim with the following counterarguments.
According to paragraph 1 of Art. 11 of the Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Guardianship”, guardianship and guardianship are established in the cases provided for by the Civil Code of the Russian Federation, and in respect of minor citizens also in the cases established by the Family Code of the Russian Federation.
According to paragraph 1 of Article 12 of the Federal Law of April 24, 2008 N 48-FZ "On guardianship and guardianship" in the interests of an incapacitated citizen in cases where it is necessary to immediately appoint a guardian, the guardianship and guardianship authority has the right to adopt an act on the temporary appointment of a guardian.
In accordance with Part 5 of Article 10 of the Federal Law of April 24, 2008 N 48-FZ "On guardianship and guardianship" grandparents, parents, spouses, adult children, adult grandchildren, brothers and sisters of an adult ward, as well as grandmothers and grandfathers, adult brothers and sisters of a minor ward have the preferential right to be his guardians or trustees over all other persons.
The procedure for the selection, registration and training of citizens who have expressed a desire to become guardians or trustees of minor citizens, and the list of documents submitted by them for the purpose of appointing them as guardians or trustees of minor citizens, as well as the terms for consideration of such documents by guardianship and guardianship authorities are established by the Rules approved by the Decree Government of the Russian Federation dated 05/18/2009 N 423 "On Certain Issues of Guardianship and Guardianship in Respect of Underage Citizens"
In accordance with paragraph 1 of Art.
32 of the Civil Code of the Russian Federation, guardianship is established over minors, as well as over citizens recognized by a court as incompetent due to a mental disorder.
By virtue of paragraphs. 3 p. 1 art. 8 of the Federal Law "On Guardianship and Custody", the powers of guardianship and guardianship authorities include the establishment of guardianship or guardianship.
When appointing guardianship of minors, the guardianship and guardianship authorities are obliged to consider the candidacies of all interested guardians after the provision of a full package of documents provided for by the Decree of the Government of the Russian Federation of 18.05.2009N 423.
The requirements for the identity of the guardian are established by paragraphs 2, 3 of Article 35 of the Civil Code of the Russian Federation.
According to clauses 2 and 3 of article 35 of the Civil Code of the Russian Federation, only adult capable citizens can be appointed guardians and custodians.
Citizens deprived of parental rights, as well as citizens who, at the time of establishing guardianship or guardianship, have a conviction for an intentional crime against the life or health of citizens, cannot be appointed guardians and trustees.
A guardian or custodian can only be appointed with his or her consent. At the same time, his moral and other personal qualities, the ability to perform the duties of a guardian or trustee, the relationship that exists between him and the person in need of guardianship or guardianship, and if possible, the desire of the ward should be taken into account.
As can be seen from the content of the statement of claim, since March 2019, the plaintiff has repeatedly applied to the guardianship authorities with a request to consider her candidacy as a guardian over a minor full name. He believes that due to the fact that she has a pre-emptive right to establish custody, and also on the basis that she did not abandon the child, the court must satisfy the requirements of the claim.
At the same time, no evidence was presented to the statement of claim confirming the relationship of the plaintiff with the child; Decree of the Government of the Russian Federation of May 18, 2009 N 423.
Moreover, according to the response to the lawyer’s request from the Head Doctor of the Boarding School, the plaintiff was not interested in his fate during the time the minor was in the institution, did not participate in his upbringing, did not provide material assistance. At the same time, one of the criteria for establishing guardianship over a person, based on a systematic interpretation of legal norms, is the desire of the candidate to establish guardianship. The appearance of a desire by the plaintiff during the period of filing a claim with the court is not a basis for recognizing the acts of the guardianship authorities on the establishment of temporary guardianship, or other acts, as invalid.
Also, the plaintiff has not provided relevant and admissible evidence confirming the need to transfer the child into her custody, and that the fact of transfer is a measure in the interests of the child.
