Joint Physical Custody or Determining Place of Residence of the Child on a Parity Basis?

Abstract

The article examines the relationship that arises between parents in their separate residence, regarding the definition of a child's place of residence in court in the absence of any appropriate agreement. The aim of the paper is to identify the main features of the legal institution of a similar foreign “joint custody” of parents in the Russian legal system. For the research, the following methods were used: sociological, modeling, comparative legal one. The court decision to determine the place of residence of a child with only one of the parents is in a certain conflict with the principle of their equality. Besides, this implementation is difficult in practice, since the court's ability to obtain reliable information about relations within family is extremely limited. In the judicial practice of disputes over the determination of the place of residence of the child, there is an unjustified bias in favor of the abandonment of the child with the mother, which, of course, does not comply with the rules and principles of family law. Family researchers — sociologists and psychologists note the detrimental nature of this approach and, based on foreign experience, propose to establish principle of “joint physical custody” of parents during their divorce in Russia. In the context of the Russian legal system, it is proposed to check the corresponding relations as the definition of the place of residence of the child on a parity basis. In addition, it is necessary to determine the conditions (relating to the will and actual circumstances) in which the application of such a rule is possible. Such conditions should be: the desire of each of the participants in the dispute to engage in the upbringing of the child; presence at them the relations developed with the child; absence of the fact of deprivation of parental rights or restriction in them; the presence of each of the parents the opportunity to engage in the child's time; their place of residence should not be removed from the center of the existing interests of the child. Actions that prevent the establishment of this regime (for example, the change of residence of a parent living with a child without justification by his interests) should be considered an abuse of the law. The application of this regime does not contradict the current legislation; therefore, there is no formal need to introduce changes into the Family Code. Nevertheless, such changes are advisable, and since such an approach is fundamentally new for our legal system and since there is a need to define clearly the conditions for its use by the judicial authorities.