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. However, the difference between two parents in terms of the scope of their rights and duties is not clear cut in a legal system which has never had the concept of custody, such as Russia. Instead, the term ‘parental rights and duties’ is used in the Russian Family Code since its conception in 1926 meaning an integral legal institution. So 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 in fact 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. In this regard, parents may reach a written agreement about the manner of exercise of parental rights 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. The parent with whom the child resides should 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).
In addition, local child protection body may assist a non-residential parent in pursuing his/her visitation right. In cross-border cases a parent might apply to one of 8 courts competent to hear cases in the framework of the 1980 Child Abduction Convention.
Despite the Resolution 2079 (2015) “Equality and shared parental responsibility: the role of fathers” adopted by the Parliamentary Assembly of the Council of Europe and calling for the member states to introduce into their laws the principle of shared residence following a separation of parents of a child, the terms ‘alternate custody’, ‘shared residence’ are unknown to the Russian law. Neither is the notion of ‘delegation of parental rights’. In practice, however, parents (one of them) issue notarial powers of attorney, which allow a child to to stay with his/her grandparents, who are supposed to protect the child’s interests. From the legal point of view, it is an incertain situation. Therefore, a draft bill modifying art. 55 of the Family Code with the view to grant grandparents a legal status in loco parientis for the periods of absence of parents, is now under consideration at the State Duma.