Chapter 2. Implementing and protecting family rights
The legal provisions contained in Ch. 2 SC of the United States, defined art. 38 of the US Constitution, according to which motherhood and childhood, the family are protected by the state.
The United States determines the type and scope of rights and freedoms, the conditions for their implementation, forms, methods, means and guarantees for their protection. The obligation to observe and protect the rights and freedoms is called upon to fulfill both the United States and all constituent entities, state authorities, local self-government bodies, as well as public associations acting in the country.
In accordance with Art. 7 of the United States of America, citizens at their discretion dispose of their rights arising from family relationships (family rights), including the right to protect these rights, unless otherwise stipulated by the USC.
The exercise by family members of their rights and the performance of their duties should not violate the rights, freedoms and legitimate interests of other members of the family and other citizens.
Family rights are protected by law except in cases when they are in conflict with the appointment of these rights.
The exercise of family rights should be understood as the activity of an authorized person within the framework of legal possibilities granted to him by family law, international law or a contract to satisfy private and, in some cases, public interests.
The exercise of family rights is the behavior of the person entitled and/or his representative, who is at the disposal of family rights.
Family rights can be realized by any means not prohibited by law.
In exercising their rights, citizens conclude marriages, raise and keep underage children, acquire property in joint ownership, commit other actions not prohibited by law. However, family law establishes the limits of behavior of members of family relations.
Under the limits of the realization of family rights, it is customary to understand the boundaries of the behavior of the subject. These boundaries of implementation can be established by law or by agreement. It should be assumed that the exercise of family rights is also limited by the limits determined not only by family law, but, in some cases, by civil and civil procedural legislation.
The possibility of restricting family rights is provided for in many articles of the United States of America.
According to Art. 8 The US Defense of Family Rights is carried out by the court in accordance with the rules of civil procedure, and in cases provided by the USC, state bodies, guardianship and trusteeship agencies, in the ways provided for by the relevant articles of the UK SC. Protection of family rights is possible in administrative and judicial order.
For example, the Commission for the Affairs of Minors and Protection of their Rights of the Municipal Formation "Vyaznikovsky District" in the interests of minors A., 10.02.2003 year of birth, and R., on 21.08.2005 of the year of birth, applied to the court with a claim against N. about depriving of parental rights, recovery of alimony. In support of the claim, she pointed out that the defendant shirked from fulfilling the duties of upbringing, keeping children, did not work for a long time, did not provide material assistance, abused alcohol, led an immoral lifestyle, and there were constant fights between her and her cohabitants in the apartment. Defendant N. did not acknowledge the claim and explained that she did not work and does not work, but at the moment she is taking measures to find a job at the newly created radio plant in Vyazniki. N. confirmed that she had visited a narcologist, but she was not prescribed treatment. N. believes that she can stop drinking alcohol without hospital treatment, agrees to "coding" from alcoholism. N. confirmed that the fights in the apartment between her and her "cohabitants" took place, but asked not to deprive her of her parental rights. The court found that N. is a lonely mother, she does not engage in the upbringing of daughters, she shirks responsibility for the maintenance of children, does not work, suffers from chronic alcoholism, lived with a "cohabitant" with tuberculosis, because of contact with whom the children needed treatment and were registered at the TB Dispensary in Vyazniki. Because of the socially dangerous situation in the family, the children were removed from the family. By the decision of the Vyaznikovsky City Court of 28.11.2006 the lawsuits of the commission on the affairs of minors and the protection of their rights to the municipal formation "Vyaznikovsky District" are satisfied, N. is deprived of parental rights, and her underage children, A., 10.02.2003 of birth and R., on 21.08.2005 of the year of birth, have been transferred to the guardianship and trusteeship authorities of the administration of the municipal formation "Vyaznikovsky district" in the face of the management of education. "
Sobinsk interdistrict prosecutor in the manner of art. 45 of the CCP of the United States appealed to the Sobinsky City Court of the Vladimir region with a statement of claim for the deprivation of the parental rights of K. against the minor I., on December 27, 1996, the transfer of the child to the guardianship and custody authorities of Sobinsky district and the recovery of alimony. The reason for the appeal to the court was the circumstance that the defendant does not perform the duties of the parent in relation to his son, leads an immoral lifestyle, abuses alcohol, which caused the departure of the elder son of the defendant from the family. Father I. died in 2004. Because of lack of proper control by the mother, I. often "skips" school, wanders, sometimes forced to live with relatives because of the intolerable situation in the house, unsanitary living conditions.
Defendant K. did not recognize the claim, saying that she works, she practically does not drink alcohol, she herself took her son to school on September 1. Also stated that the son is never hungry and does not need anything.
The representative of the guardianship and guardianship agency, the prosecutor's claim supported, pointing out that the defendant had completely withdrawn from the upbringing of her son, since April 2006 the boy lives with relatives, does not receive material assistance from his mother. During the period of the mother's stay, the child did not receive the necessary food, "wandered" without adult supervision, did not live at home, skipped school lessons, often stayed home for a few days. During the period of residence of an alien in a different family, the defendant was not even interested in his health, did not provide material assistance, receiving from the state a survivor's pension and child benefit, the funds he spent on himself, and not on the child. In resolving the dispute, the court considered this behavior of the defendant as guilty and unlawful, which, according to Art. 69 US SC, recognized the grounds for deprivation of parental rights. The claim was satisfied in full1.
In accordance with Art. 9 UK UK on claims arising from family relations, limitation of actions does not extend unless the period for the protection of violated rights is established by the US SC.
When applying the rules establishing the statute of limitations, the court must be guided by the rules of art. 198-200 and 202-205 of the US Civil Code.
By limitation of actions means the time limit for the protection of the right of the claim of the person whose right is violated (Article 195 of the Civil Code of the United States).
The limitation of actions for family relations is applied only in strictly defined cases, namely, when the time limits for the protection of violated family rights are stipulated in the Criminal Code of the United States:
- the one-year period of limitation of actions is stipulated in Section 3, Art. 35 of the United States of America for the requirements of a spouse whose notarized consent to a transaction for the disposal of real estate and a transaction requiring notarization and/or registration by another spouse was not received, on the recognition of such a transaction is invalid. The limitation period is calculated from the day the spouse learned or should have learned about the transaction;
- a three-year statute of limitations is established in clause 7 of Art. 38 SK of the United States for the requirements of divorced spouses on the division of common property. Here the course of the limitation period starts from the day when the divorced spouse learned or should have learned about the violation by the other spouse of his rights to the common property (clause 2 of Article 9 of the United States of America, paragraph 1 of Article 200 of the Civil Code of the United States);
- the one-year period of limitation of actions is established in clause 4 of Art. 169 of the United States of America (and it refers, in turn, to Article 15 of the United States of America and Article 181 of the Civil Code of the United States) for the presentation by one of the spouses of the requirement to recognize the marriage invalid when another spouse concealed from him the presence of a venereal disease or HIV infection marriage. In such cases, the limitation period is calculated from the day when the spouse-claimant learned or should have learned about the concealment of the illness by the spouse-defendant, i.e. on the circumstances that give grounds for demanding the recognition of a marriage as invalid (clause 2 of Article 9 of the United States of America, clause 1 of Article 200 of the Civil Code of the United States).
In paragraph 2 of Art. 9 of the US SC has enshrined the provision that, if it is necessary to apply the rules establishing the statute of limitations to family relations, the court must be guided by the rules of Art. 198-200 and 202-205 of the US Civil Code. From their content, in particular, it follows that the limitation period and the procedure for calculating them can not be changed by agreement of the parties (Article 198 of the Civil Code of the United States). The requirement to protect the violated right is accepted for consideration by the court irrespective of the expiration of the limitation period, and the statute of limitations is applied by the court only upon the application of the party to the dispute made before the court makes its decision (Article 199 of the Civil Code of the United States). The flow of the limitation period starts from the day when the person learned or should have learned about the violation of his right, unless otherwise provided by law (Article 200 of the Civil Code of the United States).
And, alimony for the past time within a three-year period under paragraph 2 of Art. 107 US SC can be recovered under certain conditions: a) the court established that prior to applying to the court, the authorized person took measures to receive funds for maintenance; b) the alimony was not received due to evasion of the obligated person from their payment.
An analysis of judicial practice has shown that courts do not always correctly calculate the limitation period for the consideration of family disputes.
So, VA appealed to the court with a claim to NE on recognizing the ownership of land shares of land plots, referring to the fact that these land plots were acquired by them during the marriage, after the dissolution of the marriage were not separated, because the defendant evaded the registration of half the property to the plaintiff.
By the decision of Odintsovsky on I of the kind to the court of the Moscow region dated 23.06.2004, VA was dismissed in satisfaction of the claim.
The Civil Chamber of the Supreme Court of the United States indicated that in the decision of the Odintsovo City Court of the Moscow Region of 23.07.2004, the decision of the Judicial Collegium for Civil Cases of the Moscow Regional Court of November 18, 2004 and the decision of the Presidium of the Moscow Regional Court of August 03, significant violations of procedural law.
In resolving the dispute, the Odintsovo City Court of the Moscow Region referred to the VA's waiver of the period for challenging the transactions contemplated by Art. 181 of the Civil Code of the United States. Meanwhile, these findings of the court do not correspond to the actual circumstances of the case and are contrary to the requirements of the law on the following grounds.
Q. A. points out that the marriage between him and NE was concluded on April 27, 1991, and was canceled on November 16, 1998.
The land plots were acquired by NE during the period when she was married to VA, in this connection, in the opinion of the applicant, stated in the supervisory complaint, are their joint property, and their alienation without his consent violates his rights.
The conclusion of the Odintsovo City Court of the Moscow Region about the expiration of the statute of limitations for applying to the VA court with a claim for recognizing transactions on the alienation of land plots is not valid.
In August 2000, the plaintiff was only aware of the attempts undertaken by NE to sell joint property, as indicated in the suit filed in August 2000 to recognize the ownership of 1/2 of the land, and their sale became known in the court session from the representative of NE only in March 2003.
The data refuting the reasons specified by N.E., in the case materials are absent.
The running of the statute of limitations, in accordance with the general rules, enshrined in paragraph 1 of Art. 200 of the Civil Code of the United States, begins with the day when the spouse seeking legal protection, learned or should have found out about the violation of his right. In particular, if after the dissolution of marriage the former spouses continue to share common property in common, the limitation period begins to run from the day when one of them will commit an act preventing the other spouse from exercising his rights with respect to this property (for example, alienation of property) .
In such circumstances, the Civil Chamber of the Supreme Court of the United States found the decision of the Odintsovo City Court of the Moscow Region of 23.07.2004, the decision of the Judicial Collegium for Civil Cases of the Moscow Regional Court of 18.11.2004 and the decision of the Presidium of the Moscow Regional Court of 03.08.2005 cancellation, and the case - the direction for a new trial in the court of first instance.1.
Another example showing the protection of family rights of the child by limiting the family rights of parents.
The prosecutor of the city of Vladimir appealed to the court with a lawsuit against B. about the deprivation of parental rights in the interests of minors BD and BA. In support of the claim indicated that B. is a lonely mother and has two children who are dependent on them. She withdrew from their upbringing, teaching and content. On November 23, 2006, the children were removed from the family, by order of the Head of the City of Vladimir, dated 04.12.2006, BA was placed in the Vladimir Specialized Children's Home, and BD, since November 23, 2006, lives in a social rehabilitation center for minors. The bodies of guardianship and guardianship did not apply to return the children to the family. The plaintiff asks the court to deprive B. of the parental rights with respect to the minors Darya, 17.03.2003 of birth, and Alexander, on 13.12.2005 of the year of birth, to recover from Alimony for maintenance of children in the amount of 1/3 of earnings or other income, the young Daria and Alexander to transfer to the administration of education of the administration of Vladimir for further arrangement.
The ruling of the court of 04.05.2007 adopted the specified lawsuits, according to which the plaintiff requests the court to limit B. in parental rights in respect of her minor children and collect maintenance for their maintenance in the amount of 1/_, from all types of earnings or other income.
The prosecutor of the city of Vladimir upheld the claim in full, further explaining that the defendant in the place of residence is characterized negatively, abusing alcohol, since November 26, 2006, the daughter visited only seven times, and the son - once, intentions To take children to the family did not show.
Defendant B. objected to the claims, explaining that she very much wants to return the children, now she has got a job and lives in the village. Likino of the Sudogodsky district with a roommate, visits children as much as possible, and also intends to arrange them in the kindergarten of the village. Likino of the Sudogodsky District.
The representative of a third person, the Department of Education of the city of Vladimir, acting as a guardianship and guardianship agency, supported the lawsuits of the prosecutor of the city of Vladimir, explaining that the minors BD and BA were in fact in the care of their grandmother, which subsequently informed the Education Department that her daughter had left the children and left in an unknown direction. So far, the defendant B. has not applied to the proper bodies for the return of children to the family.
The court found that B. has an underage daughter Darya, 19.03.2003 year of birth, and son Alexander, on December 21, 2005, there is no information about the father of children in birth certificates. According to the act of 23.11.2006, BD was placed in the Social Rehabilitation Center of the city of Vladimir. By the decision of the head of the city of Vladimir from 04.12.2006 № 4287 BA was transferred to education in a state institution until the decision on the issue of depriving the mother of parental rights.
According to a certificate from the Specialized Children's Home of 31.01.2007, BA is brought up in an institution since December 12, 2006, during his stay the boy was visited: December 22, 2006 - great-grandmother, December 30, 2006 - mother, but as the child slept, looked through the glass, and on January 8, 2006, my mother called and inquired about the child's health. Since January 8, 2006, no one has been interested in a boy.
While visiting his son on March 1, 2007, B. and a man, according to B., the father of the child, visited BA, while being in a state of intoxication, which is confirmed by a memo from the chief doctor of the child's home. Taking into account the above circumstances, the court comes to the conclusion that in the interests of children it is necessary to limit the parental rights of B. with respect to minors Daria and Alexander, handing them over to the guardianship and trusteeship agencies, the Vladimir Education Department, for further arrangement.>
By virtue of Part 5 of Art. 73 of the United States of America in the consideration of the case on the limitation of parental rights, the court decides on the recovery of child support from the parents (one of them). Due to this rule, the court comes to the conclusion that, in addition to restricting B.'s parental rights in relation to her underage children, it is necessary to collect alimony for the maintenance of minors BD, 17.03.2003 of birth, and BA, 13.12 .2005 of birth, in the amount of Ue of part of all types of earnings or other income from February 15, 2007, monthly until their majority in favor of the legal representative who will be appointed to the child.
The court demanded the claims of the prosecutor of the city of Vladimir in the interests of minors BD and BA to B. about limiting parental rights, decided to limit B.'s parental rights with respect to minors BD, 17.03.2003 birth, and BA, on 13.12.2005 of the year of birth.
The decision of the court with B. recovered alimony for the maintenance of minors BD, 17.03.2003 year of birth, and BA, 13.12.2005 year of birth, in the amount of part of all types of earnings or other income since February 15, 2007 every month until they come of age in favor of legal representatives.1
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