The question of determining the child’s place of residence arises in cases where the parents live separately and cannot agree on who the child will live with. In Belarus, this issue is regulated by family law norms based on the principle of priority of the child’s interests.
Judicial practice shows that the main factors in considering such disputes are legal arguments and each parent’s real conditions for the child’s life and development. The opinion of the child himself is also taken into account if he has reached a certain age.
How is the issue of determining the child’s place of residence resolved by law? Is it possible to come to an amicable agreement, or must you go to court? What factors does the court take into account when making a decision? We will discuss the answers to these questions in the article. If you find yourself in a difficult situation related to determining the place of residence of a child, it is important to contact an experienced lawyer who will help protect your rights and the interests of the child.
What is a Child’s Place of Residence
In accordance with the Code of the Republic of Belarus on Marriage and Family, a child’s place of residence is determined by his parents. If the parents live together, the question of the child’s place of residence usually does not arise. However, in case of divorce or separation of parents, it may be necessary to legally establish which parent the child will live with permanently.
According to legal norms, the court resolves the dispute if the parents have not agreed on this issue. At the same time, the court considers all circumstances that may affect the child’s physical, mental, and emotional state.
It is important to note that the child’s place of residence is not limited only to the issue of residence. Determining the place of residence entails other legal consequences, including the order of communication between the second parent and the child, participation in his upbringing, and the fulfilment of parental maintenance duties.
The Priority of the Child’s Interests and its Importance in Dispute Resolution
Belarusian family legislation is based on the priority of the child’s interests, which is key in considering all child-related issues. This principle is enshrined in the UN Convention on the Rights of the Child, to which the Republic of Belarus is a party, and in national legislation.
This principle means that the court should proceed primarily from what conditions will ensure the maximum well-being and development of the child in disputes about the child’s place of residence.
Thus, when considering a dispute over determining a child’s place of residence, the court carefully analyzes the situation, focusing on protecting his rights and interests. In such a situation, the help of a qualified lawyer is especially important since competent representation of the parent’s position in court can affect the outcome of the case. Our lawyers can prepare the necessary documents, collect evidence, and represent the client’s interests in court proceedings.
Ways to Determine the Child’s Place of Residence
In the Republic of Belarus, the child’s place of residence is determined either by agreement of the parents or in court when it is not possible to agree. A voluntary agreement is a priority, but in the event of a conflict, the dispute is resolved by the court, taking into account the priority of the child’s interests.
Reaching an Agreement between the Parents
The best option for all parties is when the parents come to a peace agreement and independently determine who the child will live with. In this case, the following is considered:
- Оpinion of the child (if he has reached the age of 10 years and older).
- The conditions of upbringing and residence of each parent.
- The attachment of a child to one of the parents.
- The ability of the second parent to communicate freely with the child.
The agreement may be oral or written. For greater legal protection, a notarized Agreement on children can be concluded. In this agreement, you can specify not only the place of residence of the child but also the order of communication between the second parent and him.
The Advantages of the Peace Agreement
- No litigation, saving time and nerves.
- Flexibility – parents can determine the conditions that are convenient for them and their child.
- Reducing the psychological burden on the child, as parent disputes are not transferred to the courtroom.
However, if one of the parents violates the agreement or there is a conflict in the future, it can be difficult to resolve the issue without trial.
Judicial Dispute Resolution Procedure
If the parents cannot agree on the child’s place of residence, the dispute is resolved in court. In this case, one of the parents submits a statement of claim to the court at the defendant’s residence to determine the child’s place of residence.
In particular, the Court Takes into Account:
- Which parent shows more attention and care to the child
- The emotional attachment of the child to each of the parents.
- The age of the child.
- The physical and mental state of the parents, as well as their personal qualities,
- The opportunity to create stable conditions for the child’s upbringing, education and development.
- Material and living conditions and moral and psychological atmosphere.
- Parents’ behaviour, involvement in the child’s life, bad habits, criminal records and other negative factors.
- The child’s opinion (if he has reached the age that allows him to formulate his point of view, usually from age 10). The territorial guardianship and guardianship authority at the child’s place of residence clarifies the child’s opinion at the court’s request.
- If the child is under three years old, his place of residence is generally determined by his mother’s place of residence.
Court proceedings can be lengthy and difficult, especially if both parents claim to live with the child. In such situations, the help of an experienced lawyer is extremely important—he will help properly prepare evidence, draw up a statement of claim, and represent interests in court.
Trial Procedure
If the parents cannot agree on the child’s place of residence, this issue is resolved in court. Let’s look at how the trial is going, what documents must be prepared, and how the final decision is made.
The Procedure for Filing a Claim
A parent who wants to determine the child’s place of residence submits a statement of claim to the court at the defendant’s place of residence. The claim is filed in the district court.
The application states:
- Full name and details of the plaintiff and the defendant.
- Full name, age and place of residence of the child.
- The grounds on which the plaintiff believes the child should live with him.
- Evidence confirms that the plaintiff can provide the best conditions for the upbringing and development of the child.
The claim may be accompanied by a request for measures to secure it, such as the prohibition of the second parent from taking the child abroad until the completion of the proceedings.
Necessary Documents for Applying to the Court
The statement of claim must be accompanied by:
- A copy of the plaintiff’s passport.
- The child’s birth certificate.
- Documents that confirm the plaintiff’s financial situation and housing conditions (e.g., an income statement, ownership documents, or a rental agreement).
- Characteristics from the child’s place of work and/or educational institution (if the child is studying).
- Conclusions of psychologists, teachers, or guardianship authorities (if any) regarding parents and the child.
- Evidence of the plaintiff’s participation in the child’s upbringing (extracts from kindergarten/school, certificates of medical care, etc.).
- Certificates that the parent is not (or is) registered with a psychiatrist or narcologist.
- The receipt for payment of the state duty is 3 basic values (126 rubles or about 36 euros).
The court may request additional documents or appoint an expert examination if necessary.
Consideration of the Case in Court and Making a Decision
The trial takes place in several stages:
1. Preliminary meeting—The parties submit documents, and the court may appoint additional examinations. For example, to proceed to court proceedings, the court requests an opinion on the dispute’s merits from the local guardianship authority.
2. The main court session is when the court examines evidence and hears parents, witnesses, and necessarily representatives of the guardianship and guardianship authorities (these are representatives of the territorial administration or the education department).
3. Taking into account the child’s opinion—if the child has reached the age of 10, the court hears his opinion. This does not mean that the court will definitely take into account the child’s opinion. In exceptional cases, the court will not take into account the child’s opinion when it contradicts the child’s interests.
4. Making a decision—The court determines with whom the child will live and may also establish the procedure for communication between the second parent and him.
The court decision is subject to immediate execution but can be appealed. To ensure maximum protection of the interests of the child and the parent, it is necessary to prepare carefully: collect evidence, competently draft a statement of claim, and correctly present your position in court. Our lawyers will represent your interests in such a process with minimal risks.
Enforcement of the Judgment and Possible Disputes
After the court has decided on determining the child’s place of residence, the stage of its execution begins. However, in practice, this process may be accompanied by difficulties related to one of the parent’s unwillingness to comply with the court decision, attempts to appeal it, or evasion from execution. Let’s look at how the execution of the decision proceeds, what appeal mechanisms are available, and what responsibility is provided for its non-fulfilment.
The Order of Execution of the Court Decision
A court decision on determining the child’s place of residence is executed by a bailiff at the request of the parent from whom the court determined the child’s place of residence. In this case:
- The bailiff initiates enforcement proceedings.
- A parent who does not comply with the court’s decision is sent a request to transfer the child.
- In case of refusal, coercive measures may be applied, including the involvement of guardianship authorities and law enforcement agencies.
- Sometimes, psychologists and teachers are required to participate if the child is stressed due to a change of residence.
The Possibility of Appealing a Court Decision
If one of the parties does not agree with the court’s decision, she has the right to file an appeal to the court of appeal within 15 days from the decision date.
When filing an appeal, you must:
- Prepare a complaint specifying the reasons for disagreement.
- Attach new evidence (if any).
- To wait for the case to be considered by a higher court.
It should be remembered that filing an appeal does not suspend the execution of a court decision unless the court has issued a separate ruling on suspension.
Executing a court decision is an important step that requires legal support. If one of the parents prevents the transfer of the child, violates a court order, or threatens his safety, it is necessary to act within the law by contacting bailiffs and lawyers. Our experts will help you protect your rights and ensure that the court’s decision is enforced.
Conclusion
The issue of determining the child’s place of residence requires a serious approach since his future life and well-being depend on the decision. Parents can come to an amicable agreement, but if an agreement cannot be reached, the court resolves the dispute, taking into account the child’s interests. To protect your rights and avoid mistakes, it is important to get qualified legal assistance. Our lawyers can prepare the documents, represent your interests in court, and do everything possible to ensure a favourable outcome for the case.
Contact us
If you have any questions and disputes related to family law in Belarus, we will be happy to help! Our long-term experience in the field of protecting citizens’ rights will help you resolve any disputes in this area.
- +37529142-27-19 (WhatsApp, Viber, Telegram);
- info@ambylegal.by.
