Problems of Implementing Rights of Fatherhood in Modern Russia

Abstract

The subject of this study is the legal institution of paternity in the system of law of the Russian Federation. The aim is to identify the main problems of the exercise of paternity rights using modeling methods, as well as historical, formal legal, systemic, statistical methods. The problem field of this legal institution begins already with the Constitution of the Russian Federation, which provides it (in the family law field) with an extremely limited base, and this limitation is not currently filled in by the legal positions of the Constitutional Court of the Russian Federation. The key in this area, taking into account the proportion of divorced marriages, is the possibility of post-divorce education by the fathers of their children. Discriminatory (to the fathers) judicial practice on determining the child's place of residence is supported, first of all, due to the illegal application by the Supreme Court of the Russian Federation of Principle 6 of the Declaration of rights of the child; his amendment of the rule of law establishing a hierarchy of criteria to be taken into account in cases of this category; as well as through the selection of court cases of a certain orientation. At the same time, with regard to the separately living parent, who, instead of raising a child, can only claim the surrogate right to communicate with him, court practice introduces the obligation to prove that such communication will not harm the child. Thus, the courts actually introduce in addition to the three established new, non-statutory form of parental responsibility, which, of course, is a violation of the law. In addition, the courts significantly limit the time of communication with the child, referring to circumstances that depend solely on the actions of the other parent living with the child, thereby giving him the possibility of abuse. The decisions of the courts on establishing a schedule of communication contribute to the same (the possibility of abuse), making it dependent upon the participation of the parent with whom the child lives (usually mothers) or on the desire of the child himself, which may be affected considerably by the parent with whom he lives. All of the above approaches are enshrined in the positions of the Supreme Court, and should be replaced by legal ones complying the norms and principles of law. At the same time, one should consider the possibility of applying as a general rule in resolving disputes between parents about the child's place of residence the mechanism of his living on an equal footing (the so-called “joint custody”).