S. Zykov

Problems of Implementing Rights of Fatherhood in Modern Russia

2020. No. 3. P. 44–71 [issue contents]
The subject of this study is the legal institution of paternity in the system of law of theRussian Federation. The aim is to identify the main problems of the exercise of paternityrights using modeling methods, as well as historical, formal legal, systemic, statisticalmethods. The problem field of this legal institution begins already with the Constitution ofthe Russian Federation, which provides it (in the family law field) with an extremely limitedbase, and this limitation is not currently filled in by the legal positions of the ConstitutionalCourt of the Russian Federation. The key in this area, taking into account the proportionof divorced marriages, is the possibility of post-divorce education by the fathers of theirchildren. Discriminatory (to the fathers) judicial practice on determining the child’splace of residence is supported, first of all, due to the illegal application by the SupremeCourt of the Russian Federation of Principle 6 of the Declaration of rights of the child; hisamendment of the rule of law establishing a hierarchy of criteria to be taken into accountin cases of this category; as well as through the selection of court cases of a certainorientation. At the same time, with regard to the separately living parent, who, instead ofraising a child, can only claim the surrogate right to communicate with him, court practiceintroduces 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 formof parental responsibility, which, of course, is a violation of the law. In addition, the courtssignificantly limit the time of communication with the child, referring to circumstancesthat depend solely on the actions of the other parent living with the child, thereby givinghim the possibility of abuse. The decisions of the courts on establishing a schedule ofcommunication contribute to the same (the possibility of abuse), making it dependentupon the participation of the parent with whom the child lives (usually mothers) or on thedesire of the child himself, which may be affected considerably by the parent with whomhe 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 thesame time, one should consider the possibility of applying as a general rule in resolvingdisputes between parents about the child’s place of residence the mechanism of hisliving on an equal footing (the so-called “joint custody”).
For citation: Zykov S.V. (2020) Problems of Implementing Rights of Fatherhood in Modern Russia. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 44–71 (in Russian) DOI: 10.17323/2072-8166.2020.3.44.71
Citation: Zykov S. (2020) Osushchestvlenie prava ottsovstva v sovremennoy Rossii: pravoprimenitel'nye i zakonodatel'nye prepyatstviya [Problems of Implementing Rights of Fatherhood in Modern Russia]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 44-71 (in Russian)
Rambler's Top100 rss