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.

If during legal proceedings it is determined what neither parents, nor persons who have child who is not able to provide his proper education and development, court, refusing satisfaction of the claim, transfers the minor to care of guardianship and custody body measures for protection of the rights and interests of the child were taken and the most acceptable method of the device of its further destiny was chosen (item 2 of the Art. 68 IC RF).

7. By consideration of claims of parents for transfer of children to them persons at whom they are based on the law or the judgment (guardians, custodians, adoptive parents, educational, medical institutions, organizations of social protection of the population and other similar organizations) need to find out whether changed by the time of consideration of dispute of circumstance, the transfers of the child to specified persons and organizations which formed the basis, and whether their return to parents is equitable to interests of children.

8. According to item 2 of the Art. 66 IC RF parents have the right to sign in writing the agreement on procedure of the parent rights the parent living separately from the child. If parents cannot come to the agreement, the arisen dispute is resolved by court upon the demand of parents or one of them with participation of guardianship and custody body.

Proceeding from the right of the parent living separately from the child to communication with it, and also from need of protection of the rights and interests of the minor in case of communication with this parent, the court taking into account circumstances of each specific case should determine procedure for such communication (time, the place, communication duration, etc.), having stated it in substantive provisions of the decision.

In case of determination of procedure for communication of the parent with the child the age of the child, state of his health, affection for each of parents and other circumstances capable to make impact on physical and mental health of the child, on its moral development are taken into account.

In exceptional cases, when communication of the child with separately living parent can do harm to the child, court, proceeding from item 1 of the Art. 65 IC RF which is not allowing implementation of the parent rights to the detriment of physical and mental health of the children and their moral development having the right to refuse to this parent satisfaction of the claim for determination of procedure for its participation in education of the child, having stated motives of the made decision.

Similarly also the requirement about removal of obstacles shall be permited the parents who are not deprived of the parent rights in education of the children who are at other persons based on the law or the decision.

Having determined procedure for participation of separately living parent in education of the child, the court warns other parent about possible effects of failure to carry out of the judgment (item 3 of the Art. 66 IC RF). As malicious failure to carry out of the judgment which can be reason for satisfaction of the requirement of the parent living separately from the child about transfer of the minor to it failure to carry out by the defendant of the judgment or creation of obstacles by it for its execution, despite application to the guilty parent of the measures provided by the law can be regarded.

9. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

10. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

11. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

12. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

13. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

14. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

15. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

16. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

17. Paragraph one of ceased to be valid

In case of deprivation of the parent rights of one parent and transfer of the child on education to other parent, the guardian or the custodian or adoptive parents the alimony is collected for benefit of these persons according to st.st.81-83, item 1 of the Art. 84 IC RF. If children to the solution of question of deprivation of the parent rights were already placed in the child care facilities, the alimony collected from the parents deprived of the parent rights are enlisted into accounts of these organizations where are considered separately on each child (item 2 of the Art. 84 IC RF).

In case of deprivation of the parent rights of both parents or one of them when transfer of the child to other parent is impossible, the alimony is subject to collection not to guardianship and custody body to which the child (item 5 of the Art. of 71 IC RF) is transferred in such cases, and is transferred into the personal account of the child in department of Savings bank.

In case of transfer of the child to child care facility, under guardianship (guardianship) or on education in foster home the question of transfer of the levied alimony to child care facility or persons to whom the child is transferred can be solved according to their statement according to the procedure, the CCP of the Russian Federation provided by Art. 203.

18. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

19. Ceased to be valid according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 14.11.2017 No. 44

20. If in case of the dispute resolution, connected with education of children, the court comes to conclusion about need of poll for judicial session of the minor for the purpose of clarification of his opinion on case in point (the Art. 57 IC RF), then it is necessary to find out previously opinion of guardianship and custody body on whether its presence at court will make adverse effect on the child.

Survey should be carried out taking into account age and development of the child in the presence of the teacher, in the situation excluding influence on it of interested persons.

In case of the child's poll the court needs to find out whether the opinion of the child is consequence of impact on it one of parents or other interested persons, whether he realizes own interests in case of expression of this opinion and as he proves it, and to that similar circumstances.

21. Courts shall not disregard the facts of untimely acceptance by guardianship and custody bodies of measures elicited by hearing of cases of this category to protection of the rights and the interests of children, the wrong attitude towards minors protected by the law from employees of child care educational facilities, schools and other educational institutions, and also parents; courts shall react to these violations by removal of private determinations to relevant organs and the organizations.

If by hearing of cases of this category in acts of parents, other persons on which education there are children essential elements of offense, encroaching on life, health, sexual integrity of minors, or actions for involvement of minors in criminal activities are established, the court shall notify on it the prosecutor (the p. 3 of Art. 226 of the CCP of the Russian Federation).

About the offenses and other antisocial conducts allowed by minors it is necessary to inform the commissions on cases of minor local government bodies.

22. In necessary cases courts according to Art. 434 of the CCP of the Russian Federation should determine procedure for execution of decisions by cases on confiscation of children, providing application of the measures promoting transition of the child from one person to another (for example, the placement to child care facility).

23. Excluded

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