Criteria for the decision to transfer to the upbringing of a child: historical and legal aspect

Abstract

The relevance of the study of the rights and obligations of parents (persons replacing them) for education using a comparative historical and legal method (by referring to Soviet legal experience) is due to the fact that it was during the Soviet period that criteria were developed that are still used by the courts to resolve cases of placing a child in foster care. The courts of the Soviet period, in the framework of cases on the placement of a child for upbringing in order to comply with the principle of the best interests of the child, were guided by the following factors as decisive: 1) the nature of the relationship between the child and the potential caregiver; 2) housing conditions; 3) moral qualities; 4) marital status; 5) the actual opportunity to engage in the upbringing of the child; 6) the opinion of the child; 7) the attachment of the child to brothers and sisters. The system of criteria for resolving cases on the transfer of a child to foster care in the course of Soviet law enforcement practice began to actively form from 1928 in connection with the participation of guardianship and guardianship authorities in such cases. However, the system of such criteria was not enshrined by the legislator either in the text of the 1926 Code of Civil Procedure of the Year or in the text of the Code of Civil Procedure of 1969. The absence of these factors in the legislation is a kind of omission of the Soviet legislator, which allowed the courts to resolve disputes about the upbringing of children without their analysis and consideration, which was especially widespread in the early years of Soviet power. Only in the post-Soviet period, an approximate system of such criteria was reflected in the Family Code of the Russian Federation.