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Two main questions which always arise in respect of children in parental disputes on family breakdown are:
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 notion ‘parental rights and duties’ has been 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 substantive family and procedural law, parental disputes are in fact place of a child’s residence disputes. In such disputes, the residential parent and non-residential (or visiting) parent is to be determined. Thus, place of a child’s residence, 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, a non-residential parent is entitled to maintain contact with the child and to participate in his/her upbringing and education. Parents may sign a parenting plan. If not, then dispute between them shall be heard by a court, with the participation of a local child protection body. Besides, it is extablished by law that the residential parent 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 residential 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. However the practice of cross-border cases of visitation rights litigation has been very scarce.
Finally, 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 stay with his/her grandparents. 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.
International Dimension of Family Law
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