RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of May 27, 1998 No. 10

About application of the legislation by courts in case of the dispute resolution, the children connected with education

The family code of the Russian Federation affirmed the right of the child to live and be brought up in family, to know the parents, and also the right to care of parents and accommodation, joint with them. For the purpose of ensuring the most complete protection of the rights and the interests of the minors in case of the dispute resolution connected with education of children, and also the correct and uniform application by courts of the regulations of the Family code of the Russian Federation regulating the specified legal relationship protected by the law, the Plenum of the Supreme Court of the Russian Federation decides to make the following explanations:

1. Treat the disputes connected with education of children: disputes on the residence of the child in case of separate accommodation of parents (item 3 of the Art. 65 IC RF); about implementation of the parent rights by the parent living separately from the child (item 2 of the Art. 66 IC RF); about removal of obstacles to communication with the child of his close relatives (item 3 of the Art. 67 IC RF); about return to parents of the child withheld not based on the law or the judgment (item 1 of the Art. 68 IC RF); about return to guardians (custodians) of the ward from any persons holding at themselves the child without legal causes (item 2 of the Art. 150 IC RF); about return to the adoptive parent of the child withheld by other persons not based on the law or the judgment (item 3 of the Art. 153 IC RF); about deprivation of the parent rights (item 1 of the Art. 70 IC RF); about recovery in the parent rights (item 2 of the Art. 72 IC RF); about restriction of the parent rights (item 1 of the Art. 73 IC RF), about cancellation of restriction of the parent rights (the Art. 76 IC RF) and others.

2. By preparation of cases of the this category for legal proceedings the judge should determine correctly the circumstances which are important for permission of the arisen dispute and subject to proof by the parties, having paid special attention on those from them which characterize personal qualities of the parents or other persons who are bringing up the child and also the developed relations of these persons with the child. Such cases are appointed to trial in judicial session only after obtaining from guardianship and custody bodies of the statements of inspection of living conditions of persons applying for education of the child which are drawn up and approved in accordance with the established procedure.

3. By consideration by court of the cases connected with education of children it must be kept in mind that according to the p. 2 of Art. 47 of the CCP of the Russian Federation and the Art. 78 IC RF to participation in case irrespective of who makes the claim in protection of interests of the child the guardianship and custody body which shall conduct examination of living conditions of the child and person (persons) applying for his education shall be attracted and also to provide to court the act of inspection and the conclusion based on it on the substance of dispute which is subject to assessment in total with all proofs collected on case.

Paragraph two of ceased to be valid.

4. In case of decision making about annulment of marriage of the spouses having general minor children, court proceeding from item 2 of the Art. 24 IC RF take measures to protection of interests of minor children and explains to the parties that separately living parent has the right and the parent with whom the minor having no right to interfere with it lives shall take part in education of the child, and.";

5. Resolving issue of the residence of the minor in case of separate accommodation of his parents (irrespective of whether they are married), it must be kept in mind that the residence of the child is determined proceeding from its interests, and also with obligatory accounting of opinion of the child who reached age of ten years provided that it does not contradict its interests (item 3 of the Art. 65, the Art. 57 IC RF).

At the same time the court takes into account age of the child, his affection for each of parents, brothers, sisters and other family members, the moral and other personal qualities of parents, the relations existing between each of parents and the child, possibility of creation to the child of conditions for education and development (taking into account kind of activity and operating mode of parents, their financial and marital status, meaning that the benefit in itself in material and household provision of one of parents is not unconditional reason for satisfaction of requirements of this parent), and also other circumstances characterizing situation which developed in the place of residence of each of parents.

6. By law parents have the right, preferential before other persons, to education of the children (item 1 of the Art. 63 IC RF) and can demand return of the child from any person holding it at itself not based on the law or the judgment (p.1 item 1 of the Art. 68 IC RF). At the same time court of the child having the right to refuse taking into account opinion to the parent in the claim if comes to conclusion that transfer of the child to the parent contradicts interests of the minor (the p. 2 of item 1 of the Art. 68 IC RF). The opinion of the child is considered by court according to requirements of the Art. 57 IC RF.

By consideration of such cases the court considers real possibility of the parent to provide proper education of the child, nature of the developed parent's relations with the child, affection of the child for persons at whom it is, and other specific circumstances influencing creation of normal living conditions and education of the child by the parent, and also persons at whom the minor lives actually and is brought up.

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