Exercise of parental rights by minor parents. Features of the exercise of parental rights by minor parents Exercise of parental rights by incapacitated and minor parents
The current RF IC for the first time consolidated the provision on the rights of minor parents. Minor parents are recognized father and (or) mother under the age of 18 years. By general rule the fact of the birth of a child is the basis for the emergence of parental rights, regardless of the age of the parents. However, the RF IC contains a number of features relating to the rights and obligations of minor parents.
So, according to the RF IC, minor parents have the right to cohabitate with the child and participate in his upbringing. Any parent, regardless of age, has the right to live with their child. The right to participate in upbringing is expressed in the fact that the upbringing of a child by minor parents must be carried out jointly with other persons who are called upon to assist in this.
Underage parents can protect their parental rights in case of their violation by all means not prohibited by law. Minor parents may be deprived of parental rights, limited in parental rights in the manner prescribed by law. However, they are given the right to demand the restoration of parental rights.
In accordance with the Civil Code of the Russian Federation, a person who has entered into a legal marriage is recognized as fully capable. Therefore, minor parents who are married to each other have the same rights as adult parents.
Unmarried minor parents, if they give birth to a child and when their maternity and (or) paternity is established, have the right to independently exercise parental rights upon reaching the age of 16 years. Before reaching minor parents of 16 years of age the child may be appointed a guardian who will carry out his upbringing together with the minor parents of the child. Unmarried minor parents do not lose their legal connection with their parents and, after the birth of a child, have the right to count on their assistance in raising children. In the absence of a person who can be appointed as a guardian, assistance in raising a child of minor parents is assigned to the guardianship and guardianship authorities.
Disagreements arising between the guardian of the child and minor parents are resolved by the body of guardianship and guardianship. When exercising this authority, the guardianship and guardianship authorities are guided primarily by the interests of the child.
Minor parents have the right to recognize and challenge their paternity and maternity on a general basis. Reaching 14 years of age they have the right to claim the establishment of paternity of their children in judicial order.
The norms of the RF IC on the parental rights of minor parents and the specifics of their implementation deserve special attention. These norms are a novelty in family law and indicate that parental rights are also recognized for minor parents, i.e. by persons under the age of eighteen years, in the event of the birth of a child. Some of the features of the implementation of their parental rights by minor parents stipulated by law are due to objective reasons and are aimed at protecting the rights and interests of both the child and the parents. Enshrined in paragraph 1 of Art. 62 of the RF IC, the rights of minor parents to live together with their child and to participate in his upbringing are based on the fact of establishing their paternity (maternity). The RF IC (Articles 48, 51) does not contain restrictions on the grounds and procedure for establishing the origin of a child from minor parents and their parents in the register of births by the registry office. In such cases, state registration of the birth of a child is carried out in the usual manner. The consent of the parents or guardians (custodians) of the minor father or mother themselves to register the birth of the child is not required.
The procedure for exercising parental rights by minor parents depends on a number of circumstances:
- - whether minor parents are married or not;
- - age of minor parents.
Thus, the RF IC (clause 2, article 62) does not provide minor parents with the opportunity to independently exercise parental rights if they are not married and have not reached the age of sixteen, although they have the right to live together with the child and participate in his upbringing. A child of such minor parents, until they reach the age of sixteen years, may be appointed a guardian who will carry out the upbringing of the child together with his parents. The guardian is obliged to live together with the child and take care of his maintenance, care and treatment, protect his rights and interests (clauses 2, 3 of article 36 of the Civil Code of the Russian Federation). As a rule, one of his relatives is appointed as the guardian of the child of a minor parent (if there are any and have expressed a desire to be guardians, and in addition, they meet the requirements imposed by law on candidates for guardians --- Article 35 of the Civil Code of the Russian Federation). Naturally, relatives of a minor parent can help him in raising a child even without being officially appointed as guardians, which is often the case in life.
When adopting a child of minor parents who have not reached the age of sixteen years, it is mandatory for their parents or guardians (custodians) of minor parents to participate in resolving this issue, and in their absence, the guardianship and guardianship authority (Article 129 of the RF IC). The body of guardianship and guardianship is authorized, at the request of minor parents or the child's guardian, to resolve disagreements arising between the child's guardian and minor parents. The consequences of settling such a dispute may vary. For example, if the guardian does not properly fulfill the duties assigned to him, he can be removed from the performance of these duties and even brought to liability established by law. And if available good reasons(illness, lack of understanding with the child's parents, etc.), the guardian may be relieved of his duties (clauses 2, 3, article 39 of the Civil Code of the Russian Federation).
Minor parents who have reached the age of sixteen, regardless of whether they are married or not, as well as minor parents of any age who are married, exercise their parental rights independently. However, when exercising parental rights by a minor parent who has reached the age of sixteen, but is not married and not emancipated, certain legal difficulties may arise due to his lack of full civil capacity. In accordance with paragraph 3 of Art. 62 of the RF IC, minor parents, regardless of age, also have the right to:
- - recognize and challenge their paternity and motherhood on a common basis (Art. 48; 52 of the RF IC);
- - to demand, provided that they reach the age of fourteen, the establishment of paternity in relation to their children in court (Article 49 of the RF IC).
Underage parents are subject to the rules of the Family Code of the Russian Federation: on the content of parental rights, on the protection of parental rights, on the deprivation or restriction of parental rights, on the removal of a child from parents in case of a direct threat to the life of the child or his health (Articles 63-77 of the Family Code of the Russian Federation).
The Convention on the Rights of the Child proclaims that parents bear the primary responsibility for the upbringing and development of the child, whose best interests should be the primary concern of parents.
Caring for children, their upbringing - equal right and parental responsibility.
Family law defines parental rights as a set of rights and obligations that are vested in parents as subjects of parental legal relations, i.e. legal relations between parents and children.
Parents are obliged to exercise their rights in relation to children in the manner prescribed by law and in accordance with their interests - this is the fundamental principle of exercising parental rights. The interest of the child is his need to create the conditions necessary for proper upbringing, maintenance, education, preparation for independent life, and successful development.
Parents do not have the right to make arbitrary decisions on the transfer of their parental rights to other persons at their own discretion, that is, parental rights are inalienable. Refusal of parents from their rights in relation to children and giving their consent to the adoption of children by other persons is possible only under exceptional circumstances and with strict observance of the procedure established by law. Deprivation or restriction of parental rights is also allowed only if there are grounds established by law.
Particular attention deserves the legislation on the parental rights of minor parents and the specifics of their implementation.
In accordance with the current Family Code Russian Federation minor parents also have parental rights - persons who have not reached the age of 18 if they have a child. The order in which the parental rights of minor parents are exercised is influenced by several factors:
1. whether the minor parents are married;
2. what is the specific age of the minor parents.
For example, according to the Family Code of the Russian Federation, independent exercise of parental rights by minor parents is not allowed if they are not married and have not reached the age of 16. At the same time, they have the right to participate in the upbringing of their child and live with him. Until the minor parents reach the age of 16, the child may be appointed a guardian who will raise the child together with the parents.
Only minors of 16 years of age, regardless of the state of marriage, as well as parents of any minor age who are married, can independently exercise their parental rights.
The rights and obligations of parents arise as a result of establishing the origin of their child. At the same time, an entry about the parents is made in the birth certificate issued by the registry office. Regardless of the age of the mother of the baby, an entry is made in the birth certificate of the child, certifying the fact of her motherhood. An entry about the father (including a minor) is entered in the birth certificate on the basis of an application to the registry office made by him together with his mother. There are no age restrictions in Russian law in this regard. The consent of the legal representatives of minors (parents or persons replacing them: guardians, trustees, representatives of children's institutions) is not required for this.
According to the Family Code of Russia, parents who have not reached the age of majority at any age can:
1. recognize and challenge their motherhood or fatherhood on an equal basis with everyone else;
2. demand, upon reaching the age of 14, to establish paternity of their children in a judicial proceeding.
The provisions of the RF IC regarding the content of parental rights, their protection, deprivation or restriction, as well as the removal of a child from the parents if there is a direct threat to the life or health of the baby, also apply to minor parents. In addition, under Russian law, minor parents can live with their child; educate him together with other persons helping in this process; can defend their rights if they are violated. Along with this, minor parents can also be deprived of parental rights or restricted. However, they can apply for the restoration of parental rights.
Thus, being parents, minors have parental rights provided for by the UK and other acts of Russian legislation on family protection. Underage parents are also fully subject to the rules relating to the protection of parental rights, deprivation of parental rights, restoration of parental rights, restriction of parental rights and removal of a child from parents in case of a direct threat to the child's life or health. However, it must be remembered that, having become parents and acquiring the rights provided by law, adolescents retain all the rights granted by law to minor children.
Specialist - expert M.Bagaeva
SCIENCE. THEORY.
PRACTICE.
Literature
1. Arbitration Procedure Code of the Russian Federation of July 24, 2002 No. 95-FZ // SZ RF. 2002. No. 30. Art. 3012.
2. About insolvency (bankruptcy): the federal law, October 26, 2002, No. 127-FZ // SZ RF. 2002. No. 43. Art. 4190.
3. Stepanov V.V. Insolvency (bankruptcy) in Russia, France, England, Germany.
4. Telyukina M.V. Competition law. - M.: Delo, 2002.
5. Shershenevich G.F. competitive process. - M., 2000. (Classics of Russian civil law).
6. Yulova E.S. Bankruptcy law: legal regulation of insolvency (bankruptcy): study guide. - M.: MGIU, 2008.
FEATURES OF EXERCISE OF PARENTAL RIGHTS BY MINOR PARENTS
MM. STAROSELTSEV,
PhD in Law (Belgorod Law Institute of the Ministry of Internal Affairs of Russia)
The parental legal relationship is complex in its content and includes: relations for the material maintenance of children; relations related to the upbringing and education of children; as well as other relations arising from the implementation of personal and property rights and obligations of parents and children.
The specificity of this kind of legal relationship is manifested in the fact that the subjects immediately acquire the entire set of rights and obligations included in the legal relationship.
However, it should be taken into account that the possibility of exercising reproductive rights and the possibility of acquiring parental rights are separate categories.
The legislator does not establish and, for obvious reasons, cannot establish the age at which a man or woman can exercise their reproductive rights, conceive and give birth to a child, respectively. Similarly, no legal age limit for the birth of a child is supposed to be established.
The media quite often report on unique cases of the birth of a child in minors and even young children, or, conversely, in the elderly.
The current Family Code of the Russian Federation for the first time provided for the norms defining the legal status of minor parents and the procedure for their implementation
their parental rights.
The specifics of the parental legal relationship that arises in this case can be identified through an analysis of the totality of the rights and obligations of minor parents, the peculiarities of their exercise of their rights, the possibility of applying the rules of family law responsibility to them, etc. .
The law recognizes minors as persons under the age of eighteen (clause 1, article 21 of the Civil Code of the Russian Federation, clause 1, article 54 of the RF IC). However, the analysis of Art. 62 of the RF IC allows us to conclude that the concept of "minor parents" is heterogeneous, and the following categories can be distinguished:
1) minor parents who are not married, until they reach the age of sixteen;
2) unmarried minor parents after they reach the age of sixteen;
3) minor parents who are married, regardless of age.
Minor parents have the right to live together with the child and participate in his upbringing. In other words, the legislator determined the scope of "truncated" rights in comparison with the rights of parents who have the full scope of parental capacity established by Art. Art. 61 - 65 RF IC. However, the conclusion that the so-called "truncated" rights belong to all categories of imperfect
PRACTICE.
age-old parents would be incorrect for the following reasons.
According to paragraph 2 of Art. 62 of the Family Code of the Russian Federation "Unmarried minor parents, in the event of the birth of a child and when their motherhood and (or) paternity are established, have the right to independently exercise parental rights upon reaching the age of sixteen years." It follows from this that the second category of minor parents (persons who are not married, after they reach the age of sixteen) have a full, and not a “truncated” scope of parental rights, and paragraph 1 of Art. 62 applies exclusively to the first category of minor parents.
Minor parents of the third category also have a full, and not a "truncated" scope of parental rights, and paragraph 1 of Art. 62 of the RF IC does not apply to them. The same position is held by E.G. Azarov, saying that if the law gives full parental rights to minor parents who are not married, upon reaching the age of sixteen, then “all the more so, minor parents who are officially married have the right to do this.”
The rights of minor parents are heterogeneous in their content in relation to these categories. The truncated nature of the rights of minor parents is also temporary, it is valid until the minor parent passes into another category, or becomes an adult.
An analysis of the provisions of the RF IC gives reason to conclude that unmarried minor parents, until they reach the age of sixteen, have exclusively parental rights and do not have parental responsibilities. A different conclusion would be impossible, since the assignment of parental responsibilities presupposes a certain factual and legal maturity of the subject. Underage parents of the first category are unusual for neither one nor the second. They, in fact, are still children themselves and do not have civil or family capacity. It would be illogical for unmarried minor parents to assume parental responsibility before they reach the age of sixteen. If we came to the conclusion that this circle of people has parental responsibilities, then it was necessary to talk about their presence in full.
volume. As a result, it would turn out that the legislator established rights in a truncated form, and duties in full.
But this, in our opinion, is impossible, since parental duties are performed, among other things, through the exercise of existing parental rights, and it is in full, and not in a truncated form. The possible assignment of duties to minors of the first category contradicts the idea of the developers of the Family Code, which consists in the desire to formulate a rule on the rights of parents of the first category so that a child cannot be taken away from minor parents against their will.
The smallest amount of rights belongs to a minor parent who is not married before reaching the age of sixteen. And, of course, this parent will have the same scope of rights and obligations with the other parent, if he is in the same position. Moreover, sooner or later this situation will change, at least when one of them reaches the age of sixteen. In all other cases, that is, when one of the parents is a minor parent of the first category, and the other is a minor parent of the second, third category or an adult, it seems that it is impossible to talk about equality of parental rights.
Parental right as such is protected by law, regardless of its scope. Consequently, the priority of parental rights is also inherent in minor parents. Another thing is if the court establishes that neither the parents nor the person who has the child is able to ensure its proper upbringing and development, the court transfers the child to the custody of the guardianship and guardianship authority (clause 2 of article 68 of the RF IC). Therefore, it must be recognized that in the event that a minor parent protects his parental rights, the court must establish whether, due to his physiological or legal immaturity, he can ensure the proper upbringing of his child. If not, then the guardianship and guardianship authority will have to decide on the further arrangement of the child of the minor parent.
It follows that, on the one hand, the RF IC grants minor parents the right to preferential education of their children over all other persons, and on the other, in fact, establishes
SCIENCE. THEORY.
practice.
that in relation to minor parents, the norms on the impossibility of raising their child are personally applicable much more often.
In the context of discussions about the exercise of parental rights by minor parents, it can be noted that in the science of family law, an opinion is expressed about the possibility of qualifying the fact of the birth of a child by a minor as a basis for recognizing him as fully capable in both civil and family law. So, M.V. Antokolskaya claims literally the following: “The situation is truly paradoxical. A minor is not entitled to make certain transactions on his own behalf (for example, transactions on the disposal of property) without the consent of the guardian, but he can independently make the same kind of transactions on behalf of the child as his legal representative.
In our opinion, this is hardly expedient and meets the interests of both minor parents and their child. In addition, we agree with A.N. Levushkin
that M.V. Antokolskaya erroneously interpreted the relevant norms of law. The scope of legal capacity is determined not by family, but by civil law.
The study of the features of parental legal relations with the participation of minor parents allows us to draw the following conclusions:
In the legal relations of minor parents who have not reached the age of sixteen years, one more subject may participate - the guardian of the child, who carries out his upbringing together with minor parents;
The birth of a child by a minor, unmarried and not emancipated, should not be considered as a basis for the loss of the legal status of a child in legal relations with his parents.
Thus, two parental legal relations take place simultaneously, in one of which the minor has the status of a child, in the other - the status of a parent.
Literature
1. Velichkova O.I. Features of the realization by minor parents of the right to participate in the upbringing of the child: a collection scientific papers Yaroslavl University.
Yaroslavl, 2002.
2. Velichkova O.I. Family legal status of a minor parent. Some problems // Law and Politics. - 2002. - No. 3.
3. Antokolskaya M.V. Family law. - M., 1999.
4. Savelyeva N.M. The legal status of the child in the Russian Federation: civil law and family law aspects: author. diss. ... cand. legal Sciences. - Belgorod, 2004.
5. Levushkin A.N. Property rights and obligations of parents, responsibility for their violation in the Russian family // Family and housing law. - 2005. - No. 3.
TO THE QUESTION OF CUSTODIA AND CUSTODIA OVER MINORS
A.V. MAKSIMENKO,
PhD in Law (Belgorod Law Institute of the Ministry of Internal Affairs of Russia);
Yes. archipenko,
undergraduate
(Belgorod State University)
The institution of guardianship and guardianship is a complex legal institution, as it is based on the norms of
only family, but also civil, as well as administrative law. In the Civil Code of the Russian Federation, the rules on guardianship and guardianship are included in
Minor parents are themselves children unless they have acquired full legal capacity by marriage or emancipation. However, they have virtually the same parental rights as adults.
According to paragraph 1 of Art. 62 of the Family Code, minor parents have the right to cohabit with the child and participate in his upbringing. Since a minor citizen is not always a mature person with an intellectual level and strong-willed maturity, he cannot properly raise a child, and sometimes he himself needs to be educated. Thus, minor parents have the right only to participate in the upbringing of the child.
From the age of 16, parents themselves can exercise the parental rights in relation to the child listed above. However, it must be taken into account that in civil law relations, the legal representative of the child is his parents, who, until the child reaches the age of 14, carry out practically all transactions on his behalf (Article 28 of the Civil Code of the Russian Federation). At the same time, a minor parent is not entitled to make many transactions without the consent of his parents (Article 26 of the Civil Code of the Russian Federation), although he himself is the legal representative of his child and can make transactions on behalf of the child. The ambiguity of this provision is not permitted by the legislator. So, a minor parent cannot sell his apartment without the consent of his parent, but he can dispose of his child's property, including immovable property (with the consent of the guardianship and guardianship authority).
Until the minor parents reach the age of 18, the child may be appointed a guardian who will carry out his upbringing together with the minor parents of the child. As a rule, the grandparents of the child act as guardians. If there are disagreements between the guardian and the parents, the disputes are resolved by the body of guardianship and guardianship.
A minor parent, regardless of age, has the right to recognize or challenge his paternity and motherhood both in administrative and judicial proceedings, and from the age of 14 has the right to demand the establishment of paternity in relation to his children in court.
IMPLEMENTATION OF FAMILY RIGHTS. PROTECTION MEASURES AND RESPONSIBILITIES IN JV
Citizens, at their own discretion, dispose of their rights arising from family relations. The exercise by family members of their rights and the performance of their duties must not violate the rights, freedoms and legitimate interests of other family members and other citizens. The exercise of subjective family rights is subject to general principles , acting in Russian law: compliance with the rule of law, moral requirements, rules of the hostel, public and state interests, etc. But family law also has its own peculiarities in the exercise of subjective rights and the performance of duties. They exist in connection with the family and are manifested precisely in the family - this is caring for the family, strengthening the family, ensuring the interests of the family by the state and society, etc. Legislation provides increased protection of the interests of a woman during pregnancy or having a child under the age of three.
Minors are special subjects of family law. They are not able to act in their own interests, therefore, they need special measures for their protection and protection. Parental rights cannot be exercised in conflict with the interests of children. Exercising their rights, they have no right to cause physical and mental harm to the health of the child, his moral development. In Art. 65 of the RF IC specifies the limits of exercising parental rights: neglect, cruel, rude, degrading treatment, insult or exploitation of children is prohibited. Exceeding these limits is punishable by law, and an entire chapter is devoted to the Criminal Code of the Russian Federation.
The exercise of their subjective rights and the performance of duties is possible both through action and inaction. For example, in the exercise by one of the spouses of their personal rights (the choice of place of residence, profession, etc.) it is simultaneously the duty of the other spouse to refrain from actions that impede the exercise of this right. Some rights can only be exercised by an action. The right to raise a child is made up of actions (sending the child to school, testing knowledge, etc.).
Ways to ensure The implementation of family rights can be different: stimulation, encouragement, provision of legal protection, etc. Family law also contains a variety of coercive measures against those who voluntarily do not exercise the rights and obligations assigned to it. Failure to fulfill obligations, and sometimes failure to use one's rights, may be related to unlawful guilty actions (for example, a parent's evasion from paying alimony). Legal protection of family rights is also provided by a number of other branches of law, such as criminal law, labor law, etc. In particular, labor legislation prohibits the dismissal of women from work due to pregnancy, breastfeeding mothers, etc. In civil law, there is such an institution as limiting the legal capacity of persons who abuse alcohol or drugs. Protection of family rights is carried out by the court according to the rules of civil proceedings, and in cases provided for by the RF IC, guardianship and guardianship authorities and other state bodies.
