The Dispute concerning the Child’s Place of Residence in Case of Separation of Parents: History and Modernity

Abstract

The relevance of researching the issue of the parent’s right to upbringing a child using a comparative historical and legal method can be explained by the fact that criteria still used by courts to resolve disputes about determining the place of residence of a child when parents are separated were developed in the Soviet times. The system of criteria for resolving cases concerning foster care in Soviet law enforcement practice began to be actively formed in 1928 due to participation of child custody and guardianship authorities in such cases. However, the system of such criteria was not fixed in the marital and family codes of the RSFSR. The lack of these criteria in the legislation allowed the courts to resolve disputes concerning child custody without analyzing them and without taking them into account. It was only in the post-Soviet period that an approximate system of such criteria was enshrined in the Family Code of the Russian Federation. In most cases, when resolving a dispute concerning the place of residence of a child (child custody) parents also ask to determine the schedule of communication between a separate parent and a child. In 2018, the law-enforcer made a serious evolutionary leap in determining the schedule of communication between a separate parent and a child. The Supreme Court of the Russian Federation faces a legal dilemma. On the one hand, the Court demonstrates respect for equality of parents’ rights to upbringing a child. On the other hand, it must take into account the child’s interest in the stability of the place of residence. The court resolved the dilemma in favor of the interests of the child. The paper provides proposals for improving family legislation in order to take into account the specified law enforcement experience of the Supreme Court of the Russian Federation.