Abuse of rights, deprivation of parental rights. Abuse of parental rights

The Family Code of the Russian Federation uses the concept of “abuse of parental rights,” but does not provide a legal definition of this concept. As E.A. correctly noted. Odegnal, “the prohibition of abuse of law in family relationships is not a novelty” Odegnal E.A. Abuse of family rights // Bulletin of notarial practice. - 2007. - No. 4., but modern family law consists of searching and recording legal techniques and methods of protection against unfair use of law.

According to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 “On the application of legislation by courts in resolving disputes related to the upbringing of children” Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 10 “On the application by courts of legislation in resolving disputes related with raising children” // Rossiyskaya Gazeta. - No. 110. dated June 10, 1998, abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, creating obstacles in learning, inducing begging, theft, prostitution, drinking alcohol or drugs, etc. It seems that this explanation of abuse of parental rights relates exclusively to Art. 69 of the RF IC, which lists abuse of parental rights as one of the grounds for deprivation of parental rights.

Meanwhile, the very concept of abuse of parental rights can be applied not only in connection with deprivation of parental rights. A lot of research in domestic civil law is devoted to the problem of abuse of law. The criterion for identifying abuse of parental rights is the interest of the minor. According to V.N. Lezhenin, the interests of children are both the norm and the limit of educational actions of parents, beyond which their actions should be considered not only as an abuse of law, but sometimes as a crime See: Lezhenin V.N. The right of parents to raise children under Soviet family law. Kharkov, 1989..

The position of A.V. seems controversial. Volkov, who believes that abuse of parental rights is not included in the civil law concept of abuse of rights, since it refers to terminologically similar but related, i.e. family, relationships.

It is difficult to agree with this opinion, since this author unjustifiably narrows the concept of abuse of parental rights, reducing everything exclusively to Art. 56 RF IC: “In accordance with Art. 56 of the RF IC, a child has the right to protection from abuse by parents. In the event of a violation of the rights and legitimate interests of a child, including in the event of non-fulfillment or improper fulfillment by parents (one of them) of the responsibilities for the upbringing, education of the child, or in the case of abuse of parental rights, the child has the right to independently apply for their protection to the guardianship and trusteeship authority, and reaching the age of fourteen years in court. For abuse of their position and power in the family, parents may be deprived of parental rights.” Volkov A.V. The theory of the concept of “abuse of parental rights.” Volgograd, 2007. P. 169..

Thus, A.V. Volkov proceeds from the fact that the RF IC provides for the only way to abuse parental rights - failure or improper fulfillment by parents of the duties of raising and educating a child, as a result of which they may be deprived of parental rights.

Experts such as psychologists, teachers, psychiatrists must analyze the actions of the parent (parents) as a complex of interrelated actions and give an appropriate conclusion that will help the guardianship authority employee or the judge to correctly resolve the case, within the framework of a court-appointed examination.

Increasingly, in legal disputes about children, including the exercise of parental rights, the parties insist on conducting a comprehensive forensic psychological and psychiatric examination (CFE) in order to determine the degree of attachment of the child to each of the parents. “When diagnosing the clinical and psychological characteristics of each of the parents, the competence of the expert psychologist includes determining their individual psychological characteristics” Safuanov F.S. Subject types of complex forensic psychological and psychiatric examination in civil proceedings // Legal psychology. - 2006. - No. 2. - p. 20, primarily from a retrospective perspective. Experts take into account that the current conflict situation in the family determines the high level of emotional tension of each of its members, affecting their current mental state and behavioral manifestations. Therefore, the personal characteristics of family members revealed, for example, in an experimental psychological study, may not reflect their stable qualities, but situationally determined characteristics. “For a reasonable forecast of the characteristics of the child’s mental development and the characteristics of the behavior of each parent in the future, this factor should be taken into account, assuming that after the court hearing and the end of the conflict, the emotional state of the child and the parent raising him will change” Ibid., p.23.

The need to conduct a forensic psychological and psychiatric examination when a court considers a dispute about a child is due to the need to protect the interests of the child, and therefore it is necessary to understand the truth of the parents’ feelings, which requires a specialist, expert, or even a comprehensive examination.

Meanwhile, “the importance of forensic psychological and psychiatric examination should not be overestimated, since it is limited to the analysis of the individual psychological characteristics of the parents” Gromozdina M.V. Features of abuse of parental rights // Family and housing law. - 2010. - No. 4. - P. 15 - 20. In addition, experts do not have the right to draw conclusions about the presence or absence of abuse of rights in a person’s actions. Only the court has the authority to formulate this conclusion.

The Family Code of the Russian Federation uses the concept of “abuse of parental rights,” but does not provide a legal definition of this concept. As E.A. correctly noted. Odegnal,

“the prohibition of abuse of law in family relationships is not a novelty”

Odegnal E.A. Abuse of family rights // Bulletin of notarial practice.

2007. - No. 4. but modern family law consists of searching and recording legal techniques and methods of protection against unfair use of law.

If parents raise their children to the detriment of their interests, treat them rudely, humiliate their human dignity when treating them, insult or exploit them, interfere with education, instill bad habits: theft, vagrancy or begging, prostitution, use of alcohol or psychoactive substances, then this is called abuse of parental rights, which may be grounds for deprivation or restriction of rights.

The issue of maintaining a balance of interests in relationships is one of the key issues in jurisprudence.

Abuse of family rights

Every child has the right to live and be raised in a family, as far as possible, to know his parents, the right to their care, the right to live together with them, except in cases where this is contrary to his interests. The child has to be raised by his parents, to ensure his interests, comprehensive development, and respect for his human dignity. In the absence of parents, in the event of deprivation of their parental rights and in other cases of loss of parental care, the child’s right to be raised in a family is ensured by the guardianship and trusteeship authority in the manner established by Chapter 18 of this Code.

61 IC RF. Page navigation Introduction.

Convention on the Rights of the Child Violation of the family rights of the child's father can occur suddenly. A law determining a father's right to a child after divorce.

Violation of the family rights of the child's father can occur suddenly. Violation of the father's parental rights - What to do? Legal traps for negligent mothers and abusive officials.

Parental father's communication with the child.

Abuse of parental rights - what is it?

The Supreme Court, in Resolution of the Plenum of May 27, 1998 No. 10, gives an incomplete list of what can be considered abuse of parental rights. This is the use of parental rights to the detriment of the interests of children. for example: a mother spends her children’s disability pensions on alcohol; spending the child’s property, including his pension, benefits or alimony; excessively healthy lifestyle, exhausting sports or music without taking into account the opinion and condition of the child; one of the parents prevents the other from exercising their parental duties, especially in cases where this order has already been determined by the court, etc.

Abuse of parental rights is one of the grounds for deprivation of parental rights.

In any case, employees of the guardianship and trusteeship authority and officials are obliged to listen to the minor, familiarize themselves with his request and take the necessary measures.

The child has the right to seek protection from any institution providing social services for minors, as well as directly from the prosecutor.

Family law

3 p. I art. 65 of the RF IC, parents who exercise parental responsibility to the detriment of the rights and interests of children are liable in the manner prescribed by law. Consequently, causing damage to a child - his health, upbringing, development - in the form of abuse of parental rights, i.e. disposing of them for other purposes is fraught with deprivation of parental rights.

Even more significant for a minor is failure to fulfill parental responsibilities, which threatens the onset of family legal responsibility in the form of deprivation of parental responsibilities.

According to some scientists, a special case of an offense is abuse of law.

which represents the exercise of subjective right in contradiction with its purpose or general principles of law. The category of “abuse of law” was known to Roman jurists, which was reflected in the saying “abuse is unforgivable.” This category was very clearly described by the French legal scholar J.-L.

Article abuse of parental rights

Thus, in particular, they do not pay due attention to the upbringing of adopted children and do not care about them. However, it is necessary to clearly understand what content the legislator and judicial practice put into this basis. The main responsibilities of parents are listed in Art. 63, 64 of the Family Code of the Russian Federation: education and ensuring the development of their children; caring for the health, physical, mental, spiritual and moral development of their children; ensuring that your children receive basic general education and creating conditions for receiving secondary (complete) general education; protection of the rights and interests of children against attacks by third parties; financial support for children.

Lawyer for deprivation of parental rights

In accordance with Art. 70 of the RF IC, an application for deprivation of parental rights can be filed by one of the parents or persons replacing them, at the request of the prosecutor, as well as at the request of bodies or organizations charged with protecting the rights of minor children (guardianship and trusteeship authorities, commissions on cases minors, organizations for orphans and children without parental care, and others). Who are the persons who replace parents is not defined by family law.

Subjects As already mentioned, the subjects of parental legal relations are parents who are vested with certain powers in relation to their minor children. Moreover, if there is a question of restriction or deprivation of parental rights due to obvious abuse by parents, then the circle of persons who can initiate a court hearing is determined by Art.

What is “abuse of parental rights” The RF IC in several articles speaks about the abuse of rights: Article 56 of the RF IC - a child has the right, in case of abuse of parental rights, to independently apply for protection of his rights and interests to the guardianship and trusteeship authorities, and upon reaching the age of 14 - to court; Article 69 of the RF IC - the possibility of deprivation of rights in case of abuse; Article 141 of the RF IC - abuse of parental rights by adoptive parents is one of the grounds for canceling adoption.

Abuse of parental rights

In addition, worthy of attention is the circumstance when parents, due to their difficult financial and physical situation, are simply not able to properly provide for the child and begging was forced. 1. Use of a minor child in the commission of a crime; 2.

Features of abuse of parental rights

We should agree with this opinion and consider the problem of abuse of rights in family law using the example of abuse of parental rights. ----------- Timaeva I. A. Abuse of law in corporate relations: qualification issues, methods of civil legal protection: Dis.

What is “abuse of parental rights”

Article 56 of the RF IC– a child has the right, in case of abuse of parental rights, to independently apply for protection of his rights and interests to the guardianship and trusteeship authorities, and upon reaching the age of 14 years - to the court;
Article 69 of the RF IC- the possibility of deprivation of parental rights in case of abuse;
Article 141 of the RF IC - abuse of parental rights by adoptive parents is one of the grounds for canceling adoption.

The Supreme Court of the Russian Federation, in Resolution No. 10 dated May 27, 1998, explains that “abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, creating obstacles in education, inducing them to begging, theft, prostitution, drinking alcohol or drugs, etc. . P." (paragraph 3, clause 11).

The list is not closed and strange, considering that involvement in prostitution, criminal activity and drug use are crimes.

lawyer for deprivation of parental rights

The issue of deprivation of parental rights in our time, unfortunately, has become very relevant “thanks to” violations by parents of their duties and rights in raising minor children. Often, deprivation of parental rights is the prerogative of close relatives of minor children (grandmothers, uncles or aunts, sometimes brothers or other guardians or trustees).

When providing services for deprivation of parental rights, our company’s family lawyers are guided by current legislation and existing general and in-house legal practice, constantly improving their knowledge and skills.

It is worth noting that cases of deprivation of parental rights are not the easiest to litigate. Therefore, revealing the essence of the services of a lawyer and attorney for deprivation of parental rights, we want to explain the direction of work of our specialists.

In accordance with Art. 69 of the RF IC, parents (one of them) may be deprived of parental rights if they: evade fulfilling the duties of parents, including malicious evasion of alimony payments;
refuse, without good reason, to take their child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or similar organizations;
abuse their parental rights;
children are cruelly treated, including physical or mental violence against them, and attacks on their sexual integrity;
are patients with chronic alcoholism or drug addiction;
committed an intentional crime against the life or health of their children or against the life or health of their spouse.

As can be seen from family law, the list of grounds for deprivation of parental rights is closed (not subject to broad interpretation). This means that drawing an analogy and applying those not listed in Art. 69 of the Family Code of the Russian Federation, the plaintiff has no rights.

Who can deprive parental rights?

Who are the persons who replace parents is not defined by family law. However, practice tends to indicate that these are the persons whom the guardianship and trusteeship authority has appointed as a guardian or trustee of a minor child (usually such an appointment is made by a corresponding resolution).

The services of professional family law lawyers in the event of deprivation of parental rights are not always necessary. For example, if parents do not want to take a child from the relevant educational or medical institutions, then the relevant institutions (or guardianship and trusteeship authorities), as well as the prosecutor, can apply for deprivation of parental rights.

But for the most part, issues of deprivation of parental rights take place in complex trials, with the participation of the parent who wants to be deprived of parental rights, expressing his disagreement with such a statement. During the process, such a parent proves in every possible way that he did not commit any violations of the child’s rights, did not treat him cruelly, did not use physical or mental violence, etc. In this case, the job of a family law lawyer is to prove the opposite.

How to deprive parental rights?

The RF IC provides only for the judicial procedure for deprivation of parental rights.

Let us dwell on specific failures by the parent to fulfill their rights in more detail.

Evasion of parental responsibilities, including malicious evasion of child support.

Avoidance of parental responsibilities can be expressed in a lack of concern for their moral and physical development, training, preparation for social and public work (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 No. 10). Among such evasion of parental responsibilities, judicial practice names the following facts: the parent does not work, leads an antisocial lifestyle, abuses alcohol, children do not attend school (with the connivance of their parents), etc.

It is also worth noting that the mere fact of children living separately from their parents is not grounds for deprivation of parental rights.

If one of the parents does not pay child support for a long period of time (even if the parents are married!), such parent can be deprived of child support. However, the law immediately points out the possibility of deprivation of parental rights in case of malicious evasion of child support payments.

A type of evasion of parental responsibilities is malicious evasion of child support. This type of crime falls into the category of crimes against family and minors. Responsibility for malicious evasion of parents from paying, by court decision, funds for the maintenance of minor children, as well as disabled children who have reached the age of 18, is provided for in Part 1 of Art. 157 of the Criminal Code of the Russian Federation.

Courts recognize as malicious evasion of alimony payments cases when a person does not provide assistance in supporting children for a long time without good reason and his behavior indicates an unwillingness to comply with a court decision.

Malicious evasion of alimony payments occurs not only in cases where this fact is established by a court verdict in a criminal case. The fact that a person fails to fulfill, without good reason, his obligations to support a young child, expressed in the presence of arrears in the payment of alimony, can be confirmed by a resolution on the calculation of arrears of alimony, written evidence in which the person acknowledges his arrears.

If failure to pay child support is the only responsibility that the parent does not fulfill, then most often the court rejects the application for deprivation of parental rights.

Refuse, without good reason, to take their child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or similar organizations.

In this case, a claim for deprivation of parental rights in case of refusal to take your child from the parental home or other institution is brought by the guardianship authorities or prosecutors. In such cases, relatives are less likely to file a claim.

Family law does not contain a list of reasons that justify or do not justify such an act of the parents (one of them). But the court, of course, takes into account and recognizes as valid the parents’ reasons, such as illness, death or the extremely serious health condition of a close relative. This parameter for assessing the validity of reasons is subjective and is subject to The fact that parents have difficult living conditions is subject to assessment in each specific case.

The courts do not consider valid reasons for refusing to remove their children from the relevant institutions due to lack of work or the sale of their only home. Most often, judges do not perceive this in favor of parents.

Refusal, without good reason, to pick up your child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or other similar institutions is regarded by lawyers as a kind of abandonment of the child.

Abuse of parental rights.

By “abuse in the literal sense of the word” one should understand “use for evil,” i.e. a harmful action (inaction) carried out using some means. The presence of such a tool is a mandatory feature that distinguishes abuse from other harmful actions.” Family law itself does not contain a direct definition of the concept of “abuse of parental rights.” This concept is explained by Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 27, 1998 No. 10. According to it, abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, creating obstacles in learning, inducing them to begging, theft, prostitution, drinking alcohol. or drugs, etc. From the logic of the law and its interpretation by the Plenum, it follows that abuse must be systemic and not one-time in nature.

Within the meaning of family law and Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the actions of parents in the abuse of parental rights must be guilty. But the corresponding explanations of the Plenum of the RF Armed Forces cannot be considered exhaustive. In order to qualify specific actions of parents as an abuse of parental rights, the law enforcer should be guided by the general idea of abuse of rights as such an exercise of a subjective right in contradiction with its purpose, which causes harm. Obviously, the qualification should be carried out taking into account the RF IC, which says that parental rights cannot be exercised in conflict with the interests of children, and when exercising their rights, parents should not cause harm to the physical and mental health of children, their moral development.

Some lawyers believe that abuse also includes cases of preventing a child from communicating with other relatives, especially when such communication is secured by a court decision.

Child abuse.

Enshrined as the fourth basis for deprivation of parental rights, the concept of “cruel treatment of children” is not disclosed in any way by the RF IC itself. Explanations regarding it are given by the Resolution of the Plenum of the Armed Forces of the Russian Federation of May 27, 1998 No. 10. From the above explanations it follows that child abuse can be expressed as physical violence, psychological violence, sexual violence, unacceptable methods of education (rude, dismissive, humiliating human dignity in the treatment, abuse or exploitation of children).

If physical violence, sexual violence and unacceptable ways of raising a child are even more or less clear, then it is worth explaining what refers to the mental form of violence against a child.

Mental forms of violence include:
- open rejection and constant criticism of the child;
- open threats against a child;
- remarks made in an offensive manner, degrading the dignity of a child;
— deliberate restriction of a child’s communication with peers or other significant adults;
- lies and failure by adults to keep their promises;
- a single harsh mental impact that causes mental trauma in a child.

Based on practical experience, it can be noted that child abuse can also be understood as neglect of the basic needs and interests of the child. It may manifest itself in insufficient satisfaction of the child's needs for food, physical and psychological safety, love, lack of proper care and supervision or necessary medical care. In other words, the concept of cruel treatment can be expressed in everything that the court considers unacceptable in relation to a child in a particular family, at a particular time, under certain circumstances.

Chronic alcoholism and drug addiction of parents.

The concept of “chronic alcoholism” is not contained in the Family Code of the Russian Federation, however, an analysis of judicial practice shows that the main factor when the court decides on the deprivation of parental rights of parents suffering from chronic alcoholism or drug addiction is a medical opinion.

Many lawyers believe that to deprive parental rights due to chronic alcoholism or drug addiction, an appropriate medical certificate is sufficient. It is worth noting that this is quite logical, in addition, it complies with the norms of the Civil Code.

Commitment by parents (one of them) of an intentional crime against the life or health of their children or against the life or health of their spouse.

These acts include: attempted murder of a child, the desire to drive him to suicide, grievous bodily harm, beatings, torture, contracting a sexually transmitted disease or HIV infection, leaving a minor in a dangerous environment that threatens his life, and the like.

However, it is worth considering that the fact of committing a crime is established solely by a court verdict. The presence of such a verdict on bringing a parent to criminal liability on appropriate grounds is grounds for deprivation of parental rights.

In addition to the substantive rules of the procedure for depriving parental rights, there are also procedural rules. For example, the Code of Civil Procedure and the Investigative Committee of the Russian Federation indicate the obligation of the guardianship and trusteeship authority, as well as the prosecutor, to be present in the processes of deprivation of parental rights. It is also worth noting that cases of deprivation of parental rights are considered not by magistrates’ courts, but by district (city) courts of general jurisdiction (Articles 23, 24 of the Code of Civil Procedure of the Russian Federation).

This is just a small part of what a lawyer needs to know when resolving the issue of deprivation of parental rights. By resolving this issue independently, the client risks missing some details that may subsequently affect the fate of the child.

To order the “deprivation of parental rights” service, you just need to call our office, come to a free appointment, sign an agreement and draw up a power of attorney to conduct the case.

What does abuse of rights and dishonesty mean?

(Unfair omission, actions with the intent to cause harm (chicane), restriction of competition, abuse of process, liability)

Along with the concept of illegal behavior, there is the concept of unfair behavior (Article 1 of the Civil Code of the Russian Federation). Moreover, dishonest behavior is equated by the legislator to abuse of law (Article 10 of the Civil Code of the Russian Federation). The legislator did not explain what dishonest behavior and abuse of law are and how these actions differ from illegal behavior. But it can be noted that the very phrase “unconscionable behavior” suggests that a person does not act in good conscience, and does it consciously

The Constitutional Court indicates that the ban on abuse of rights in any form and the legal consequences of abuse are aimed at implementing the principle enshrined in Article 17 of the Constitution of the Russian Federation that the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons (Definition of the Constitutional Court) Court of the Russian Federation dated July 17, 2014 No. 1808-O).

Despite the fact that the law distinguishes between illegal and dishonest behavior, the highest judicial body says that abuse of rights occurs when a subject acts contrary to the norm that grants him the corresponding right, and also does not correlate the behavior with the interests of society and the state, and does not fulfill the corresponding right legal obligation (Definition of the Supreme Court of the Russian Federation No. 32-KG14-17 dated 02/03/2015).

Indeed, unconscionable behavior is often also illegal. An example is sham transactions that are made to achieve some selfish result in the absence of a direct need for their completion (Article 170 of the Civil Code of the Russian Federation).

Forms of abuse of rights

Forms of abuse of rights can be completely different:

1. Using the right for the sole purpose of causing harm to another person (“chicane”);

2. Actions bypassing the law for an illegal purpose;

3. Restriction of competition and abuse of a dominant position in the market;

4. Unfair omission;

5. Deliberately dishonest exercise of civil rights. For example:

disposing of a right for an illegal purpose;
disposal of rights by illegal means;
actions as a result of which the other party cannot exercise its rights.

In general, any form of abuse is the use of rights belonging to a person in unauthorized ways, contrary to the purpose of the right, or for an unauthorized purpose, resulting in harm to others. This is precisely the position that the courts adhere to when establishing the fact of abuse.

Chicane It is very rare in its pure form. Usually this form of abuse is combined with others, since the consequence of abuse of rights by one party to the relationship is harm to the other party. Thus, concluding a transaction on conditions that are especially favorable for a party inevitably entails unfavorable consequences for another person (Definition of the Arbitration Court of the Republic of Bashkortostan in a case dated 2014). Or another case in which the court found that a rate of more than 500 percent per annum for using the loan amount could lead to unjust enrichment of the creditor and violate the principles of reasonableness and good faith (Ruling of the Supreme Court of the Russian Federation in a case from 2016).

Distinguishing between circumvention of the law and legal behavior is quite difficult. Everyone knows the rule: what is not prohibited by law is permitted. Therefore, the choice of a specific method for achieving the stated legitimate goal does not give rise to talk about circumventing the law.

The most significant example is the collection by suppliers (performers, contractors) of unjust enrichment (in other words, payment for goods supplied, work performed) in the absence of a government contract, when the need to conclude one is provided for by the Law on the Contract System (Definition of the Supreme Court of the Russian Federation in a case from 2015).

Federal Law “On the Protection of Competition” dated July 26, 2006 N 135-FZ defines specific elements of abuse (Article 10). Among them:

imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract;
inclusion of discriminatory conditions in the contract.

Moreover, restriction of competition is not allowed not only by the dominant entity in the market, but also by other companies (Decision of the Moscow Arbitration Court of 2013).

Abuse of omission occurs when a person has a right but fails to exercise it, resulting in harm to another person.

As an example of abuse of rights by unauthorized means, one can cite a situation where organizations include defects that are beneficial to themselves in a contract (Definition of the Supreme Court of the Russian Federation of 2014).

Abuse of rights can be caused by such actions of a person as a result of which the other party could not exercise its rights. For example, concealment of information, as a result of which another person missed the statute of limitations.

Consequences of abuse of right

The law prohibits acting in bad faith, much less making a profit in this way. Unfair behavior is prohibited for a reason. If detected, the dishonest person will be held accountable for his actions in the form of consequences determined by law.

It must be said that the courts are practically unlimited in the measures that are applied to an unscrupulous person. Despite the fact that such measures can only be provided for by law, judicial practice also develops other ways to suppress abuse of law. The nature and consequences of the abuse are taken into account.

The most common consequence of dishonest behavior is a complete or partial refusal to satisfy claims in order to protect the party aggrieved from abuse (Definition of the Supreme Court of the Russian Federation in a case from 2016). Moreover, the courts do not set out to punish the guilty person. Therefore, the mere fact of abuse of rights is not enough to deny a claim. The courts need to present other compelling arguments.

Other measures could include, for example:

prohibition to perform certain actions;
termination of the use of a right without deprivation of this right;
refusal to apply the statute of limitations (Decision of the Supreme Court of the Russian Federation dated May 16, 2016 No. 304-ES16-3710);
failure to accept the arguments of the abused person;
recognition of the transaction as invalid (Article 168 of the Civil Code of the Russian Federation, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25 of 03/04/2015).

Abuse of process

Rights can be abused not only in the sphere of civil legal relations, but also in the judicial process. This is done, of course, to delay the fulfillment of obligations or to try to win a dispute. Thus, most often it is in the judicial process that a form of abuse of rights is realized for an unlawful purpose by completely acceptable means:

filing petitions (to disqualify judges, to suspend the proceedings, to postpone the trial);
early submission of documents;
filing an obviously unfounded claim (for example, with the intention of suspending a case already under consideration);
appealing judicial acts that are not subject to appeal.

Another form of abuse of procedural rights may be inaction:

failure to comply with court requirements;
failure to provide evidence;
failure to appear at a court hearing.

At the same time, failure by the creditor to file a claim for a long time cannot be considered as an abuse of his right (Resolution of the Eighth Arbitration Court of Appeal dated July 11, 2014 No. 08AP-3660/2014).

Abuse of procedural rights also entails adverse consequences for the person who violated the ban (Article 41 of the Arbitration Procedure Code of the Russian Federation, Article 35 of the Code of Civil Procedure of the Russian Federation):

imposing on the person who has abused the right the obligation to pay money (for example, payment of legal costs - Article 111 of the Arbitration Procedure Code of the Russian Federation, fines - Article 66, Article 225.12 of the Arbitration Procedure Code of the Russian Federation, Article 57 of the Code of Civil Procedure of the Russian Federation);
refusal by the court to carry out actions for which a petition or demand has been submitted (Resolution of the Presidium of the Federal Antimonopoly Service of the North-Western District dated November 1, 2002 No. 56).

As you can see, the ban on abuse of law applies to various legal relationships: contractual, non-contractual, procedural. Although the integrity of the subjects is assumed, no one is immune from encountering abuse. However, proving bad faith can be quite difficult. Therefore, if there are suspicions that the counterparty is acting in bad faith, it is better to contact an experienced lawyer.

If the person himself is tempted to act in bad faith, he should consult with a lawyer to get an idea of the possible consequences of his actions. They may turn out to be more disadvantageous than the consequences of conscientious behavior. In addition, the lawyer will be able to suggest other, acceptable ways to achieve the desired result.

Abuse of law in judicial practice

Abuse of law is understood as the exercise by a person of civil rights solely with the intention of causing harm to another person, actions in circumvention of the law for an unlawful purpose, as well as other deliberately dishonest exercise of civil rights.

According to Art. 10 of the Civil Code of the Russian Federation, such behavior of participants in civil legal relations is unacceptable. Violation of the prohibition may result in the following measures:

— refusal by the court to protect the relevant right, unless other measures are established by the Civil Code of the Russian Federation (parts 2 and 3 of Article 10 of the Civil Code of the Russian Federation);

— compensation for losses by a person whose rights were violated by abuse (Part 4 of Article 10 of the Civil Code of the Russian Federation);

- recognition of a transaction made contrary to the prohibition established by Part 1 of Art. 10 of the Civil Code of the Russian Federation, invalid according to Art. 168 of the Civil Code of the Russian Federation (clause 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”);

— other measures provided for by law (Part 2 of Article 10 of the Civil Code of the Russian Federation).

As practice shows, the most common cases of application of this rule include disputes initiated by bankruptcy trustees in relation to the debtor’s property. However, participants in other legal relations also abuse their rights.

Public insults as an abuse of the right to freedom of speech and expression

A police officer was publicly insulted by an intoxicated person. Obscene language was expressed in “derogatory expressions in an indecent form.”

(Decision of the Dyurtyulinsky District Court of the Republic of Bashkortostan dated October 2, 2017 in case No. 2-924/2017).

The right to a trademark is not subject to protection if its registration was aimed at appropriating the reputation of another participant in economic activity

The entrepreneur carried out the production and sale of products using a certain verbal element. Under the appropriate name, the products were also exhibited at various events, received awards and commendations, and earned a corresponding reputation. A few years later, the plaintiff registered a trademark with the word element used by this entrepreneur.

(Decision of the Arbitration Court of the Rostov Region dated May 23, 2016 in case No. A53-785/16).

A transaction concluded for the purpose of withdrawing the liquid property of the debtor in order to avoid foreclosure on it is declared invalid, and the property is returned to the bankruptcy estate

The debtor entered into a number of transactions, including an agreement with a friend, aimed at alienating property while remaining its actual owner.

Excessive compensation payments to the director, provided for in the employment contract in the event of its early termination, may be considered an abuse of right

The employment contract contained a requirement to pay the director of the enterprise compensation in the amount of an annual salary. The early termination of the contract occurred during a period when the organization met the signs of insolvency: in particular, the enterprise had no property, and debts reached multimillion-dollar amounts. The director, being also the sole founder of the enterprise, could not help but know about this. In connection with this, his actions were recognized by the court as aimed at causing property damage to creditors.

The sale of jointly acquired property by one of the spouses in order to deprive the second spouse of his share entails the recognition of the corresponding transaction as invalid

During their marriage, the couple purchased two apartments. One of them was subsequently sold at a reduced price, the second was donated. Third parties who became owners of the property did not actually take possession. The court declared the relevant transactions invalid, since they were concluded in violation of the prohibitions established by Art. 10 Civil Code of the Russian Federation.

(Appeal ruling of the Moscow Regional Court dated September 4, 2017).

Concealing information about a will in order to seize inherited property is recognized as an abuse of right

Of the testator's three relatives, two were included in his will. One of the heirs entered into a conspiracy with a relative not mentioned in the will in order to divide the inheritance among themselves. Contrary to the agreement, the latter accepted the inheritance, registering all the property in his name; the other, having gone to court to protect his inheritance rights, was forced to reveal the contents of the will. By court decision, one of the heirs under the will became the sole owner of the inherited property.

The requirement to move into residential premises without the purpose of actual residence may be recognized as an abuse of right

The apartment belongs in equal shares to two owners. One owner permanently resides in the disputed premises, the other is registered and lives at a different address. The claim for occupancy of the second owner was denied, since the disputed residential premises have a small area and one room, the co-owners are not relatives, and the plaintiff is registered and permanently resides in another residential premises.

The article was written based on materials from the sites: juridicheskii.ru, vash-yurist102.ru, madroc.ru, eraprava.ru, zakon.ru.

To cases abuse of parental rights This includes cases where one parent prevents the other from exercising their parental rights, especially in cases where this order has already been determined by the court.
In accordance with the Family Code of the Russian Federation, parents are not only obligated to raise their children, but also have the right to do so, whereas the previously effective CoBC of the RSFSR (Article 52) provided only for the responsibility of parents to raise their children. Raising a child means influencing his spiritual and physical development, teaching rules of behavior, and ensuring the child’s education.
Parents have the preferential right to raise their children personally. Being free to choose methods and means of education, they must proceed from the interests of the child, society and the state. The state, in turn, takes measures to provide assistance to parents and other persons raising children.
When raising a child, parents are obliged take care of his health, physical, mental and moral development. The most important prerequisite for the full, comprehensive development of a child’s personality is good health. In accordance with Part 1 of Art. 41 of the Constitution of the Russian Federation recognizes the right of every person to health care and medical care. Medical care in state and municipal health care institutions is provided to children free of charge. The protection of children's health is ensured by environmental protection, the creation of favorable living conditions, recreation, education and training, control over the production and sale of food products, and the provision of accessible medical and social assistance to children. A child’s health largely depends on his diet, physical education and sports, timely provision of medical care in case of illness, and a healthy microclimate in the family that promotes normal mental development. The spiritual and moral development of a child primarily depends on the personal qualities of the parents and their spiritual values.
In case of failure to fulfill or improper fulfillment of the responsibility for raising children, or failure to show care for children, parents may be brought to family law (deprivation of parental rights and restriction of parental rights in the event of inappropriate behavior of parents), civil law (responsibility of parents and persons replacing them for harm caused by minor children), to administrative (liability of parents and persons replacing them for failure to fulfill the duties of raising and educating children), and even to criminal liability (liability for failure to fulfill the duties of raising a minor).
The rights and responsibilities of parents to protect the rights and interests of children (Article 64 of the RF IC) correlate with the child’s right to protect their rights and legitimate interests, enshrined in Art. 56 RF IC. Parents protect not only the rights of children provided for by family law, but also the rights enshrined in the norms of other branches of law, as well as interests that are not at all within the scope of legal regulation. The subject of legal regulation of other areas includes the child’s housing rights, inheritance rights, the right to protect his life and health, the right to social security, the right to protection of honor and dignity, and others.
Parents are the legal representatives of their children and act in defense of their rights and interests in relations with any individuals and legal entities, including administrative and judicial authorities, without any special powers; they only need to present documents confirming the origin of the children from specific parents (birth certificate of the child and passport of the father or mother of the child).
Methods for protecting the legal rights and interests of children can be very diverse: parents can take measures to prevent violations of the rights of the child, they can demand the restoration of the violated rights of the child, they can act on behalf of minors in court, etc.
An exception to the rule provided for in paragraph 1 of Art. 64 of the RF IC, there are cases when there are contradictions between the interests of parents and children. In such situations, parents do not have the right to represent the interests of the child by virtue of the norm of paragraph 2 of Art. 64 RF IC. If there are disagreements between parents and children, the guardianship and trusteeship authority is obliged to appoint a representative to protect the rights and interests of the children.
The right of parents to demand the return of their child from any person who is keeping him not on the basis of law or a court decision (clause 1 of article 68 of the RF IC) is interconnected with the priority right of parents to raise their children (clause 1 of article 63 of the RF IC ). The grounds for the parents to submit a demand for the return of the child are:
- the fact that the child is being held by other persons, including other relatives of the child;
- such retention is not based on the law (for example, the child being with a guardian in connection with the establishment of guardianship, being in a medical or educational institution) or a court decision (a court decision on the adoption of a child).
The parents' demands for the return of the child to them are considered by the court in accordance with the procedure of claim proceedings. When considering a case, the court has the right, taking into account the child’s opinion, to refuse to satisfy the claim if it comes to the conclusion that the transfer of the child to the parents does not meet the interests of the child (Part 2, Clause 1, Article 68 of the RF IC). The child’s opinion is taken into account by the court in accordance with the requirements of Art. 57 RF IC.
When considering such cases, the court takes into account the real ability of the parent to ensure the proper upbringing of the child, the nature of the existing relationship between the parent and the child, the child’s attachment to the persons with whom he is, and other specific circumstances influencing the creation of normal living conditions and upbringing of the child by the parent, as well as by persons with whom the minor actually lives and is raised.
If during the trial it is established that neither the parents nor the persons with whom the child is located are unable to ensure his proper upbringing and development, the court, refusing to satisfy the claim, transfers the minor to the care of the guardianship and trusteeship authority so that measures were taken to protect the rights and interests of the child and the most acceptable way of arranging his future fate was chosen (clause 2 of article 68 of the RF IC, clause 6 of the resolution of the Plenum of the RF Armed Forces of May 29, 1998 “On the application of legislation by courts in resolving disputes, related to raising children").

In accordance with paragraph 1 of Art. 66 of the RF IC, a parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues regarding the child’s education, and the parent with whom the child lives should not interfere with the child’s communication with the other parent, if it does not cause harm physical and mental health of the child, his moral development.
The procedure and methods for exercising parental rights by a parent living separately from the child can be determined in a written agreement between the parents (Clause 2 of Article 66 of the Family Code). It can determine the place of communication, the duration of meetings, provide for the type of educational institution and the form of education of the child.
If the parents cannot come to an agreement, the dispute that has arisen is resolved by the court at the request of the parents or one of them with the participation of the guardianship and trusteeship authority (Part 2, Clause 2, Article 66 of the RF IC).
Based on the right of a parent living separately from the child to communicate with him, as well as the need to protect the rights and interests of a minor when communicating with this parent, the court, taking into account the circumstances of each specific case, should determine the procedure for such communication (time, place, duration of communication and etc.), setting it out in the operative part of the decision.
When determining the order of communication between a parent and a child, the child’s age, state of health, attachment to each parent and other circumstances that can affect the child’s physical and mental health and moral development are taken into account.

In case of failure to comply with the court decision, measures provided for by civil procedural legislation are applied to the guilty parent. And in case of malicious failure to comply with a court decision, the court, at the request of a parent living separately from the child, may make a decision to transfer the child to him, based on the interests of the child and taking into account his opinion (clause 3 of Article 66 of the RF IC).
In accordance with Art. 406 of the Code of Civil Procedure of the RSFSR, a fine in the amount of up to two hundred minimum wages established by law may be imposed on a parent who does not comply with a court decision to remove obstacles for the other parent to communicate with the child and take part in his upbringing. Payment of fines does not relieve the debtor from complying with the court decision.
As explained in paragraph 8 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 27, 1998 No. 10, the failure of the defendant to comply with the court decision, which may be the basis for satisfying the request of a parent living separately from the child to transfer the minor to him, can be regarded as a malicious failure to comply with a court decision or creating obstacles for its execution, despite the application of measures provided for by law to the guilty parent.
A parent living separately from the child has the right to receive information about his child from educational, medical institutions, social welfare institutions and other similar institutions (Clause 4 of Article 66 of the RF IC).
This norm is new for Russian family legislation and it once again emphasizes the principle of equality of rights and responsibilities of parents in relation to their children. According to paragraph 4 of Art. 9 of the UN Convention on the Rights of the Child, both parents have the right to receive information about their children if they are separated from their children for any reason.
In paragraph 4 of Art. 66 of the RF IC does not specify the information that a parent has the right to receive about a child, but based on the approximate list of institutions that should provide information about a child, we can conclude that it should concern the child’s health status, his behavior, the child’s attitude to school and sports , the level of his material security, the need for clothing and other necessary material and household items. The parent should be informed about the need to purchase medications for the child, vouchers for sanatorium treatment and recreation, etc.
The provision of information about a child may be refused only if there is a threat to the life and health of the child on the part of the parent. In this case, the refusal to provide information can be challenged in court.

Documents that need to be completed to deprive a former spouse of parental rights

The statement of claim is submitted in writing to the district court at the defendant’s place of residence. The application shall indicate the following information:
1. name of the court to which the application is submitted;
2. the name of the plaintiff, his place of residence, as well as the name of the representative and his address, if the application is submitted by a representative;
3. name of the defendant, his place of residence;
4. what is the violation of the rights and or legitimate interests of the plaintiff and his demands;
5. the circumstances on which the plaintiff bases his claims, and evidence confirming these circumstances;
6. list of documents attached to the application.

If the prosecutor appeals to protect the legitimate interests of a citizen, the application must contain a justification for the impossibility of bringing a claim by the citizen himself.
The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court. A copy of the power of attorney is attached to the statement of claim. In addition, copies of it are attached to the statement of claim in accordance with the number of defendants and third parties; a document confirming payment of the state duty (100 rubles - as a non-property statement); documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties.

The package of documents in each case is individual and should be prepared by a lawyer, but the general recommendations are as follows: duly certified copies of the marriage or divorce certificate and the child’s birth certificate must be attached to the statement of claim. You can submit to the court both notarized copies and photocopies along with the originals - in this case, the court will certify the copies itself. It is also necessary to provide a certificate from the child’s place of residence. You cannot do without written evidence - you will need certificates from the bailiff confirming the failure to comply with the procedure for communicating with the child; documents confirming the defendant’s antisocial behavior (any information about police calls, certificates from the emergency room, sick leave certificates), information about the defendant’s condition on the relevant records (for example, drug treatment), other evidence that he is evading parental rights and responsibilities. It also makes sense to submit a petition to the court with a request to request enforcement proceedings from the bailiff service. If the defendant was prosecuted for malicious failure to comply with a court decision to determine the order of communication with a child, attach a copy of the verdict.

What is meant by abuse of parental rights? Does this mean abuse of parental rights?

Good afternoon. Any abuse involves using your civil rights with the intent to harm someone.

This is their use to the detriment of the interests of the child (Resolution of the plenum of the Armed Forces of the Russian Federation dated May 27, 1998 N 10 “On the application of legislation by courts”).

It varies in different cases. Ask specifically what is to the detriment of the child

This is when, for example, children are exploited or parental rights are used not for the benefit of the children, receiving benefits and spending them on other needs.

Abuse of rights means their use to the detriment of the interests of the child (clause 11 of the resolution of the plenum of the Armed Forces of the Russian Federation of May 27, 1998 N 10 “On the application of legislation by courts”).

The Supreme Court pointed out the signs by which it is possible to determine the presence of abuse of legal rights on the part of parents. These signs include: deliberately creating obstacles in a child’s education; encouraging children to beg or steal; inducing a child into prostitution; encouraging children to drink alcohol or drugs.

If you find it difficult to formulate a question, call the toll-free multi-line phone 8 800 505-91-11 , a lawyer will help you

She filed for termination of parental rights due to abuse of rights. How long will the trial take? what judicial practice.

Good afternoon It will take a lot of time, at least 6 months, based on practice

Natalya, you can’t make forecasts based on timeframes - from 2 months or more, this is a serious question. To assess the prospects you need to at least know. what the abuse was and what consequences it entailed.

Hello, Natalia. Nobody keeps such statistics. Everything depends on the appearance of the parties and participants, on whether the defendant agrees with the claim.

According to para. 3 p. I art. 65 of the RF IC, parents who exercise parental rights to the detriment of the rights and interests of children are liable in the manner prescribed by law. Consequently, causing damage to a child - his health, upbringing, development - in the form of abuse of parental rights, i.e. disposing of them for other purposes is fraught with deprivation of parental rights. Even more significant for a minor is failure to fulfill parental responsibilities, which threatens the onset of family legal responsibility in the form of deprivation of parental rights.

If we understand responsibility as consequences unfavorable for the owner of rights, not only in the family legal sphere, but also in other relations related to children, then it will become clear why a typical example of responsibility under family law is precisely the deprivation of parental rights, which has acquired in our time of formidable proportions. Thus, in 2007, 65,585 parents were deprived of parental rights, from whom 77,416 children were taken away 1 See: On the Concept of State Family Policy: based on materials from parliamentary hearings. M., 2009. P. 38.. According to statistics from the Ministry of Education and Science, in 2008 the number of children whose parents were deprived of parental rights was 74,492 people. And this is despite the fact that deprivation of parental rights is associated with many losses and losses for a citizen as a parent.

For example, the right to receive various types of benefits and maternity benefits, the possibility of eviction without the provision of living space. At the same time, the severity of such responsibility is increased by maintaining the obligation to support one’s child, in respect of whom parental rights have been lost (clause 2 of Article 71 of the RF IC), wherever he is (under guardianship/trusteeship, in a foster family, or a child care institution). The exception is the adoption of a minor, which ends all legal ties with the parent deprived of parental rights.

To the listed legal losses for a person deprived of parental rights, one can add Art. 1075 of the Civil Code of the Russian Federation, which states: if a person has been deprived of parental rights, the court may impose liability for harm caused by his minor child within three years after the parent is deprived of parental rights, if the child’s behavior, which led to the harm, was a consequence of improper performance of parental responsibilities.

Thus, deprivation of parental rights, permissible only in court, presupposes, on the one hand, a careful attitude to parental rights, and on the other, the establishment of strict grounds for the application of such a responsible measure of responsibility.

Careful attitude towards parental rights explains the fact that, for example, as a general rule, parental consent is required for adoption. And only in exceptional cases, indicating that parental rights have become only a fiction, the attitude of their owner towards them has no legal significance. And the adoption of a child in the event of deprivation of parents (one of them) of parental rights is permitted no earlier than 6 months from the date of the court decision on deprivation of parents (one of them) of parental rights (Clause 6 of Article 71 of the RF IC), which is difficult to agree with , since for a small child it is important that he is placed in another family as soon as possible. As for the grounds for deprivation of parental rights, they are listed in Art. 69 RF IC.

This includes:

evasion of parental responsibilities, including malicious evasion of child support. In other words, there must be evasion, moreover, having the nature of a system that involves repeated evasion of alimony payments for unjustified reasons. Evasion of such a duty is also a criminal action under Art. 157 of the Criminal Code of the Russian Federation;
refusal, without good reason, to take your child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or similar organizations. Valid reasons include an extremely difficult life situation (serious illness, lack of housing, means of subsistence, etc.). But if a woman-mother is not married to the father of her child, then she still retains her right to unhindered placement in a child care institution under full state care. When she abandons her child in a hospital without notifying her intention to give him up for adoption to any person, there is an unlawful relinquishment of parental rights to deprive her of parental rights;
abuse of one's parental responsibilities, i.e. using them to harm the child. It can have various forms of expression. The most typical is the use of their children as beggars and beggars;
cruel treatment of children, including physical or mental violence against them, assault on their sexual integrity. The inadmissibility of child abuse is addressed in the Convention on the Rights of the Child. So, in Art. 19 of this Convention states: “States Parties shall take all necessary legislative, administrative, social and educational measures to protect the child from all forms of physical or psychological violence, insult or abuse, neglect or neglect, abuse or exploitation, including sexual abuse.” , by parents, legal guardians or any other person caring for the child." The Convention on the Rights of the Child has other articles that impose on the state party the obligation to protect minor children from sexual exploitation and abuse, torture and other cruel, inhuman or degrading treatment or punishment. However, in the Russian Federation, not everything is going well with regard to protecting children from abuse. According to statistics from the Ministry of Education and Science, in 2008, the number of children in whose protection from abuse a corresponding claim was brought or a conclusion on child abuse was submitted to the court was 3,502 people. And the number of parents deprived of parental rights due to child abuse is 1,545 people. Every year, about 50 thousand children run away from home due to parental cruelty. But even this figure cannot claim to be accurate, since all cases cannot be determined statistically. That is why the 40th session of the UN Children's Committee (Geneva, September 12-30, 2005) recommended, among other things, the Russian Federation to “strengthen measures to prevent and suppress the sexual exploitation of children and sexual abuse of children.” Such close attention to such grounds for deprivation of parental rights as child abuse is also explained by the fact that in any case, child abuse, both physical and mental, including an attempt on a child’s sexual integrity, is fraught with a pronounced delay in his intellectual development 2 See: Tsymbal E.I. Child abuse: causes, manifestations, consequences. M., 2007. P. 31.. In addition, as a result of violence against a child, parent-child relationships are disrupted. A minor who has been subjected to violence grows up to be the same rapist as his parent;
chronic alcoholism or drug addiction. Both of them refer to serious mental illnesses that affect the will of the parent when he is unable to fulfill his parental duty. Moreover, this refers specifically to chronic alcoholism, and not everyday drunkenness, when the parent is still somehow able to cope with his responsibilities. But if chronic alcoholism, as a rule, is combined with abuse of parental rights, failure to fulfill parental responsibilities, and abuse of children, then the parent’s everyday drunkenness is not always so dangerous for the child, and therefore does not necessarily in itself serve as a basis for deprivation of parental rights. It is usually combined with other evidence of misconduct by the parent. Chronic alcoholism of a parent is one of the most common grounds for deprivation of parental rights. Its danger lies not only in a gross violation of the rights of the child, the formation of a distorted idea of parenthood in a minor, but also in the transformation of this kind of disease into a complex social phenomenon of enormous scale. According to medical statistics, “2.6 million Russians are now susceptible to alcoholism. However, their real number is about 5 million people, or 3.4% of the total population.” 3 Zaigraev G.G. Alcoholism and drunkenness in Russia. Ways out of a crisis situation // Socis. 2009. No. 8. P. 75.. “The alcoholization of the population, steadily growing over many years, acquired the character of a truly national disaster for Russia at the turn of the 20th-21st centuries, creating a real threat to the social and legal security of citizens.” And, let us add, especially minors. Moreover, it has been noted that initiation into alcohol has shifted from the age group of 16-17 years to the group of 14-15 years;
committing a deliberate crime against the life or health of one’s children or against the life or health of a spouse. Consequently, in this premise of deprivation of parental rights, different circumstances take place. The first is a deliberate attack on the life and health of one’s child, which is nothing more than a criminal offense, which, naturally, is incompatible with parenthood as such. But in order to deprive parental rights on this basis, it is necessary that the parent be found guilty in criminal proceedings. The question of deprivation of parental rights in such a situation can only be raised after the verdict has entered into legal force. The second basis for deprivation of parental rights is an attempt on the life or health of the spouse, and not necessarily the child’s parent. The rationale for this reason is not entirely clear. If a crime is not committed in front of a child for whom the mother’s spouse is a stranger, then it is difficult to say that the minor is in danger, and his rights and interests are suffering. When everything happens in the presence of a child, we can say that serious psychological trauma has been caused to him, fraught with the deprivation of parental rights of the one who attempted not only the parent, but also the parent’s spouse.

This is an exhaustive list of grounds for deprivation of parental rights. It should be considered complete. The seriousness of such an act as deprivation of parental rights is emphasized by the fact that it is carried out only in a judicial proceeding and is not the subject of consideration by a magistrate. In addition, deprivation of parental rights is an exceptional measure of family legal responsibility. This means that it is used only when various types of preventive measures have not yielded a positive result. These include warnings (oral and written) from internal affairs bodies, guardianship and trusteeship authorities, commissions for minors, etc.

As a preventive measure, the use of Art. 535 of the Code of Administrative Offenses of the Russian Federation with the following content: “Failure of parents or other legal representatives of minors to fulfill their responsibilities for the maintenance and upbringing of minors entails a warning or the imposition of an administrative fine in the amount of one to five times the minimum wage.” Of course, the amount of such responsibility is not so significant, but its application, sometimes repeated, can serve as a step towards deprivation of parental rights. As a preventive measure, a denial of a claim for deprivation of parental rights may appear, which serves as a warning signal for the defendant.

Deprivation of parental rights may be preceded by the application of the Criminal Code of the Russian Federation (Article 131), insofar as it concerns rape of a known minor; Art. 132 (violent acts of a sexual nature committed against a person known to be a minor); Article 134, which specifically provides for sexual intercourse and other actions of a sexual nature with a person who has reached 18 years of age, with a person known to be under 16 years of age; Art. 135 (depraved acts, their commission without the use of violence against a person known to be under 14 years of age).

In short, criminal legislation contains a number of articles devoted to crimes against sexual integrity and sexual freedom, including those of minors who were victims of a parent. We are talking about crimes that constitute one of the grounds for deprivation of parental rights, but which already entail criminal liability. It can occur when criminal acts against a child are proven and can be combined with liability under family law in the form of deprivation of parental rights.

Another article of the Criminal Code of the Russian Federation is directly related to the possibility, and sometimes the necessity, of depriving parental rights: Art. 125, called “Leaving in danger”, which states that “deliberately leaving without help a person who is in a condition dangerous to life and health and is deprived of the opportunity to take measures for self-preservation due to his infancy... or due to his helplessness, in cases where the perpetrator had the opportunity to provide assistance to this person and was obliged to take care of him, or he himself put him in a condition dangerous to life or health,” is punishable by a fine or compulsory correctional labor.

There is a legal requirement, which in itself is the basis for deprivation of parental rights. It may be combined with the loss of these rights in court, or it may indicate the possibility of preventing the deprivation of parental rights if a previous verdict was taken against a parent who committed a similar crime against his child. Battery (beating or committing other violent acts, as provided for in Article 116 of the Criminal Code of the Russian Federation), torture (causing physical or mental suffering through systematic beatings or other violent acts, as stated) can be combined with the deprivation of parental rights or be part of a family offense. in Art. 117 of the Criminal Code of the Russian Federation).

And finally, failure to fulfill the duties of a parent to raise a minor is considered a crime by Art. 156 of the Criminal Code, if this act is associated with child abuse. In such cases, the combination of deprivation of parental rights with criminal punishment (fine, restriction, imprisonment) can give the desired effect. Moreover, deprivation of parental rights affects not only the personal, property rights and responsibilities of the parent, but also the legal status of his minor children.

The attention from criminal and family law to the inadmissibility of a parent violating the rights of a child or failure to fulfill parental responsibilities is explained by the fact that the state cannot help but punish those who are obliged to take care of him. As for family law, the main feature of family legal responsibility in the form of deprivation of parental rights is the termination of any legal connection between a parent and his child, which is extremely important for determining his future fate. And here is the loss of not only the parent’s right to various types of benefits and payments, but also the right to inheritance, because parents do not inherit by law after children in respect of whom the parents were judicially deprived of parental rights and were not restored to these rights by the day the inheritance was opened (paragraph 2, clause 1, article 1117 of the Civil Code of the Russian Federation).

Without the provision of other living quarters, citizens deprived of parental rights may be evicted if children living together with them is declared impossible by the court (Part 2 of Article 91 of the Housing Code of the Russian Federation). Adult children are exempt from paying alimony to parents deprived of parental rights (paragraph 2, paragraph 5, article 87 of the RF IC). And, of course, the most important thing is that persons deprived of parental rights cannot personally raise their children. Their child may be transferred for adoption to another family without the consent of a citizen who has lost his parental rights in court.

All this taken together explains why deprivation of parental rights is of an exceptional nature, as specifically stated in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children.” It follows that in order to deprive parental rights, intent to commit unlawful acts is necessary. The exception is chronic alcoholism and drug addiction, which are serious mental illnesses associated with complete damage to the volitional sphere of a person. Since minor children cannot evaluate the behavior of their parents, their consent (disagreement) to deprive their father or mother of parental rights has no legal significance.

Deprivation of parental rights refers to the only family legal measure of responsibility of an exceptional nature. Therefore, it is unlawful to bring a corresponding claim only for the purpose of obtaining guardianship benefits for the child; early removal of one of the parents from among the persons subsequently entitled to receive alimony for their maintenance; to satisfy a purely symbolic desire that “such” a parent should not be considered such at all.

Deprivation of parental rights remains in force even after the child reaches the age of majority, even if we take into account that we are talking about rights that last until he reaches 18 years of age. The rules on inheritance, on the payment of funds for the maintenance of a person previously deprived of parental rights, and on the possibility of eviction also remain in force.

Despite its severity, deprivation of parental rights is not irreversible. Article 72 of the RF IC provides for the restoration of parental rights, which serves as an incentive to restore the family and regain the state of parenthood. As a result of the restoration of parental rights by the court, the child regains his parents (one of them). However, the RF IC allows for the restoration of parental rights if certain conditions are met.

behavior change;
lifestyle changes;
changing your attitude towards raising your child.

Moreover, it is necessary for the court to make sure that all three named prerequisites for the restoration of parental rights are present. One desire - even the most sincere - to change oneself to restore parental rights is not enough. This desire, confirmed by real facts, should be expressed by a person who was previously deprived of parental rights, and not, say, a representative of the guardianship and trusteeship authorities. In other words, the person deprived of parental rights will be the plaintiff in the case.

When the court considers a claim for restoration of parental rights, the child’s opinion is taken into account, and if he is over 10 years old, his consent is required. In any case, when considering a claim, not only and not so much the conditions for restoration are taken into account, but first of all the interests of the minor. And if it contradicts his interests, the court may refuse the claim. In addition, restoration of parental rights is not allowed if the child is adopted, i.e. I found a new family, new parents, my attachment to whom is beyond doubt and completely justified. But this kind of situation is not a dead end. If the adoption is cancelled, the path to restoring parental rights is open, of course, subject to all the conditions provided for by the RF IC.

The situation with the restoration of parental rights can be complicated if, after satisfying the claim, the persons with whom the child lived and raised refuse to return him to his birth family. In this case, the plaintiff will have to present two claims to the court simultaneously. One is about the restoration of parental rights, the other is about the return of the child to him in accordance with Art. 38 of the RF IC, dedicated to the protection of parental rights.

Restriction of parental rights is difficult to classify as measures of family legal responsibility of parents. Rather, it is a measure to protect a child who is in a dangerous environment. Moreover, with the restriction of parental rights, the legal connection with the child remains. Therefore, it is easier to restore it completely over time. That is why persons limited in parental rights are not affected, for example, by the rules on inheritance by law, or by the possibility of their eviction by the court without the provision of another living space.

Examples from judicial practice

The regional court convicted B. under clauses “c”, “d”, part 2 of Art. 105, art. 156 of the Criminal Code of the Russian Federation. She was found guilty of not fulfilling her parental responsibilities in raising her young daughter, which was combined with cruel treatment, as well as of committing with particular cruelty the premeditated murder of her daughter, who she knew was in a helpless state. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation excluded Art. 156 of the Criminal Code of the Russian Federation, which provides for failure to fulfill the duties of raising a minor, as excessively imputed on the following grounds.

At the court hearing, B., in essence, did not dispute the circumstances set out in the verdict that her deliberate actions led to the death of her newborn daughter. She did not deny that she left her helpless daughter for several days in a closed apartment in a stroller without water or food. The child was taken by police officers to the children's ward of the hospital in serious condition. Upon examination, he was found to be exhausted with weight loss, with signs of dehydration. The diagnosis of dystrophy was caused by the girl's fasting for several days.

Depriving a child of food and water led to irreversible functions of vital organs and systems of the body. The victim’s life could not be saved; she died in the intensive care unit. B.’s guilt in intentionally causing the death of his newborn daughter is confirmed by the testimony of witnesses given in the verdict, as well as the autopsy report of the deceased, the conclusion of a forensic expert on the cause of death of the victim and other documents attached to the case. Agreeing with the conclusions of the court about the proof of B.’s guilt in the premeditated murder of his daughter and recognizing the correct qualification of her actions under paragraphs “c”, “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, the Judicial Collegium for Criminal Cases considered B. to be unduly charged with committing a crime under Art. 156 of the Criminal Code of the Russian Federation.

D. is the mother of minor E., born in 2007. - filed a lawsuit against M., the girl’s father, in the district court for deprivation of parental rights. The child's parents divorced the marriage. D. explained her request by the fact that M. has been avoiding supporting his daughter since the day of her birth, has not paid alimony for her maintenance, is abusing his parental responsibilities, since he did not live with the family, and demands that the child be provided to him at any time, regardless of the regime daughters and daily routine. He allegedly accompanies these demands with threats and insults, threatening to take his daughter to his homeland, i.e. to Cuba. At the same time, the defendant filed a counterclaim against D., obliging her to accept financial resources (alimony) for her daughter, and also not to interfere with her meetings with her father. When considering the case, the court established: after the divorce, the father continues to take care of his child, communicates with the girl on Saturdays or Sundays, when she walks with her mother. At the same time, he gives the child toys and leaves money in the stroller. The plaintiff in the case of deprivation of parental rights demonstratively throws them away. Thus, the court found that M. does not evade paying alimony. D.'s arguments about threats from M., the fact of his abuse of parental rights were not confirmed, and he also did not commit any illegal actions. Therefore, the court concluded that there were no grounds for depriving M. of parental rights.

At the same time, the court determined the following procedure for communication between father and daughter: weekly on Sundays from 11:00 to 13:00 alone and outside the apartment at the place of residence of the child’s mother, i.e. in a place at the discretion of M. At the same time, the court considered it necessary to indicate that the child’s mother must ensure that the girl is prepared for her meetings with her father. At the same time, the court, when determining the specified procedure for communication, noted that it can be changed taking into account specific circumstances, including changes in the work schedule of the parties, their financial and marital status, changes in the child’s health, taking into account his age, wishes (recommendations) doctors, the wishes and interests of the child himself, taking into account his future employment in the educational institution, additional classes in clubs.

At the same time, the court refused M. to satisfy his demands regarding forcing D. to accept alimony from him in the amount that he proposed: 10,000 rubles. per month. The court motivated its refusal by the fact that, according to Art. 80 of the RF IC, the procedure and form for providing maintenance to minor children are determined by the parents independently. And the mechanism proposed by M. for participation in the maintenance of his daughter is not provided for by law. However, M. is not deprived of the opportunity to make appropriate transfers or open an independent bank account in the name of the child.