Two main questions which always arise in respect of children on family breakdown are with which parent a child resides and who should have contact/visitation/access rights. The difference between the two concepts is not always clear cut, especially in a legal system which has never had the concept of custody, such as Russia. The term ‘parental rights and duties’ is used in the Russian Family Code since conception of the Russian Family Code of 1926 meaning an integral legal institution. Parents of a child, whether they are married or not, have equal parental rights and duties towards their child. In the context of Russian family and procedural law, custody disputes are place of a child’s residence disputes. Place of a child’s residence, being a formal concept, results in a shift of volume of daily care of a child being moved towards a residential parent.
According to Art. 66 of the Russian Family Code, non-residential parent is entitled to maintain contact with the child and to participate in his/her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development. In practice however, the parent may exert a psychological manipulation over a child to provoke hostility towards other parent – a so-called ‘parental alienation syndrome‘ (the term was introduced by an American child psychiatrist Richard Gardner in 1985).
According to the Russian legislation, parents may reach a written agreement about the manner of exercise of parental authority by the non-residential parent. If the parents are unable to come to an agreement, any dispute between them shall be decided by a court, with the participation of the local child protection body.
Local child protection body may also assist a non-residential parent in pursuing his/her visitation/contact/access right. In cross-border cases a parent might apply to one of 8 courts competent to hear cases in the framework of the 1980 Hague Convention.
The terms ‘alternate custody’, ‘shared residence’are unknown to Russian law. Meanwhile the Parliamentary Assembly of the Council of Europe adopted the Resolution 2079 (2015) “Equality and shared parental responsibility: the role of fathers” calling for the member states to introduce into their laws the principle of shared residence following a separation of parents of a child.