Legislation governing the issues of ascertaining the opinion of the child when considering disputes about his place of residence
The issues of finding out the opinion of the child by the court when considering cases on determining the place of residence of the child are regulated by the Code of the Republic of Belarus on marriage and the family, as well as by the Decree of the Plenum of the Supreme Court of the Republic of Belarus dated September 30, 2004 N 11 “On the practice of considering disputes related to the upbringing of children by courts.”
Circumstances taken into account by the court when deciding on the issue of determining the place of residence of the child
When considering this category of cases, the court must take into account the following circumstances:
– age of the child;
– the degree of attachment of the child to each of the parents, brothers, sisters, grandfather and grandmother, as well as to other relatives;
– spiritual and moral qualities of parents;
– the relationship that has developed between the child and each of the parents;
– the mode of work and the financial situation of each of the parents to resolve the issue of the most favorable conditions for the residence, education and development of the child;
– other relevant circumstances.
The opinion of the child when considering disputes on the determination of his place of residence: general provisions
Legislation establishes the age at which a child’s opinion about where he will live is ascertained. This age is set at 10 (ten) years. This norm is established by Article 185 of the Code of the Republic of Belarus on Marriage and Family.
So, a child who has reached the age of ten has the right to express his opinion about his place of residence. The need to clarify the opinion of the child arises in the event of a divorce of the parents, when a dispute is resolved through the court, where the child will live – with the father or with the mother.
There are two ways to get a child’s opinion about who they want to live with. These ways are:
– the court sends a request to the guardianship and guardianship authorities at the place of residence of the child;
– the court independently in the court session finds out the opinion of the minor in the form of a conversation.
The role of guardianship and guardianship authorities in ascertaining the opinion of the child
An important role in clarifying the opinion of the child regarding his place of residence when considering marriage and family disputes, the legislator assigns representatives of guardianship and guardianship authorities.
Having received a request from the court, a representative of the guardianship and guardianship authorities visits the minor at the address where he lives in order to have a conversation with him.
After the conversation, the body of guardianship and guardianship sends its conclusion to the court.
Decision of the Plenum of the Supreme Court on disputes on the determination of the place of residence of the child
As provided by the Plenum of the Supreme Court of the Republic of Belarus, the opinion of the child regarding his place of residence may be clarified by the courts:
– in the process of preparing the case for trial;
– directly during the court session in the form of a personal conversation in the presence of a teacher.
The court must determine, by interviewing the child, the following circumstances:
– whether the child’s desire is sincere;
– which parent is the child more attached to;
– whether he was subjected to psychological pressure from his mother or father, or from other relatives (grandparents, brothers, sisters, etc.), as well as interested parties.
The judge is obliged to draw up a certificate of the results of the conversation with the child and attach it to the case file. The judge makes a decision taking into account the wishes of the child, unless it is contrary to his interests.
It is also worth noting that there are cases when a child, in a conversation with a representative of the guardianship and guardianship authorities, or in court, expresses the opinion that he wants to live, for example, with his mother.
At the same time, the court reliably established the fact that living with the mother can adversely affect the mental health and spiritual and moral development of the child (the mother leads an immoral lifestyle and is cruel to the child). The father, on the contrary, has high moral qualities, the child is attached to him, and the child’s living with the father will ensure a decent standard of living and proper upbringing of the minor.
In such a situation, the court, despite the opinion expressed by the child, will decide to leave him with his father. Therefore, the observance of the rights and interests of the child is of great importance when the court makes a decision.
