Procedural and substantive legal aspects of judicial consideration of child upbringing disputes

Vollständiger Abstract

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The subject of the research is the material and procedural mechanisms for the protection of the rights of minors in civil proceedings related to child upbringing disputes. The object of the research is the social relations that arise during the consideration by general jurisdiction courts of cases on determining the child's place of residence, establishing the procedure for communication with a parent living separately, as well as on the deprivation and restriction of parental rights. The author examines such aspects of the topic as the procedural status of guardianship and custody authorities, the procedure for considering the opinion of the minor in court sessions, and the specifics of proving in certain categories of family disputes. Special attention is paid to the role of forensic psychological expertise as a means of establishing the child's genuine attachment and identifying facts of psychological inducement by one of the parents. The work analyzes enforcement problems associated with the formalism of guardianship and custody authority conclusions, the lack of a uniform approach to assessing the minor's will, and the appointment of scientifically unsound "psychological and pedagogical expertise." The methodological framework of the research includes general scientific methods of cognition, as well as specific scientific methods: formal legal, comparative legal, and systemic-structural analysis. The study employs an analysis of judicial practice and expert opinions. The main conclusions of the conducted research are as follows. Firstly, the necessity of legislative consolidation of a mandatory pre-trial mediation stage for disputes regarding the determination of a child's place of residence and the procedure for communication has been identified. Secondly, there is a need to introduce uniform qualification requirements for experts appointed in family disputes, which will help curb the practice of appointing scientifically unsound psychological and pedagogical expertise. The novelty of the research lies in the substantiation of proposals for delineating the procedural statuses of the guardianship and custody authority: it is proposed to consider it solely as an entity providing a conclusion on the case, rather than as a third party. Additionally, proposals have been formulated to improve the Civil Procedure Code of the Russian Federation and the Family Code of the Russian Federation, aimed at strengthening procedural guarantees for the rights of minors. The author’s special contribution to the research on this topic is the systematization of problems in the enforcement of laws in the area of child upbringing disputes and the development of specific legislative changes to address these issues.