Family Code for guardians and trustees

Official text:

Article 145. Establishment of guardianship or guardianship over children left without parental care

2. Guardianship is established over children under the age of fourteen. Guardianship is established over children aged fourteen to eighteen years.

3. Relations arising in connection with the establishment, implementation and termination of guardianship and trusteeship of children left without parental care are regulated by the Civil Code Russian Federation, the Federal Law “On Guardianship and Trusteeship” and other normative legal acts of the Russian Federation adopted in accordance with them, unless otherwise provided by this Code and other normative legal acts containing norms of family law.

4. The placement of a child under guardianship or guardianship is carried out taking into account his opinion. The appointment of a guardian for a child who has reached the age of ten years is carried out with his consent.

5. Transferring brothers and sisters under guardianship or trusteeship to different persons is not permitted, except in cases where such transfer is in the interests of the children.

6. Placement of a child under guardianship or trusteeship is permitted in accordance with the Federal Law “On Guardianship and Trusteeship” under an agreement on the implementation of guardianship or trusteeship, including under an agreement on foster family, or in cases provided for by the laws of the constituent entities of the Russian Federation, under an agreement on a foster family (foster care, foster care).

7. When placing a child under guardianship or trusteeship under an agreement on guardianship or trusteeship, it is required to adopt an act of the guardianship and trusteeship authority on the appointment of a guardian or trustee who performs his duties for a fee.

If the guardianship and trusteeship body, which has adopted an act on the appointment of a guardian or trustee performing their duties for compensation, unjustifiably evades concluding an agreement on the implementation of guardianship or trusteeship, the guardian or trustee has the right to present to the guardianship and trusteeship body the requirements provided for in paragraph 4 of Article 445 of the Civil Code of the Russian Federation .

When a child is placed under guardianship or trusteeship under a guardianship or trusteeship agreement, the rights and obligations of the guardian or trustee to represent and protect the rights and legitimate interests of the child arise from the moment the guardianship and trusteeship authority adopts an act on the appointment of a guardian or trustee. The right of a guardian or trustee to remuneration arises from the moment of conclusion of this agreement.

Lawyer's comment:

The main purpose of guardianship or trusteeship of minor children left without parental care is the protection of their rights and interests, which are both personal and property in nature. The first includes everything related to raising a child. And despite what this goal is called, its achievement is served by the relevant articles of the Family Code, and not the Civil Code. As for the property rights and interests of a minor, when protecting them, the general provisions of the Civil Code are used, devoted to the legal capacity and legal capacity of any citizen, including those who have not reached the age of majority.

In addition, articles of the Civil Code contain general rules regarding the signs of guardianship and trusteeship, which reproduce family law. In more detail, the Civil Code regulates guardianship (trusteeship) over adult incapacitated, partially capable persons, which has its own characteristics, which are reflected not only in the Civil Code, but also in the Law on Guardianship and Trusteeship. Guardianship is established over children under the age of 14 years. It is they who, due to their young age, are helpless and need special protection. Guardianship is established over minors aged 14 to 18 years.

We are talking about so-called teenagers who have a certain independence. Hence the differences in the protection of personal and especially property rights of children under guardianship and trusteeship. Controversial issues include the issue of family law as part of civil law and the complete independence of family law. The law on guardianship and trusteeship is based entirely on the first position. As a result, Article 4 of the Family Code, which has not been repealed and deals with the application of civil legislation to family relations, was violated. It is permissible if two conditions are met:

1) if there are gaps in the Family Code regarding the legal regulation of property and personal non-property relations between family members;

2) if the application of civil legislation does not contradict the essence of family relations.

Both of these conditions are absent. Firstly, guardianship and trusteeship of minors have always been an integral part of all family codes. Secondly, the transfer of business partnership relations to family relationships contradicts their essence - Article 1 of the Family Code, which defines the basic principles of family legislation. Therefore, relations regarding guardianship and trusteeship of minors were and are regulated primarily by the Family Code, taking into account the innovations introduced by the Law on Guardianship and Trusteeship.

Among the innovations introduced by the Law on Guardianship and Trusteeship is the identification of the child’s opinion regarding his placement in guardianship (trusteeship). None age restrictions Paragraph 4 of Article 145 does not contain anything on this score. Since not every child, especially minors, is able to determine his attitude towards guardianship (trusteeship), and adolescents in general often strive for complete independence, it makes sense, following the requirements of the Law, to identify the opinion of a minor indirectly. As for the appointment of a guardian for a child who has reached 10 years of age, here too it is advisable to reveal his consent indirectly.

Part 3 of Article 13 of the Law on Guardianship and Guardianship allows for the establishment of guardianship upon the application of the minor citizen who has reached the age of 14, indicating a specific person. But at the same time, the requirements for the personality of someone who intends and is ready to replace parents must be met. Such a clause, naturally, can prevent the establishment of guardianship in the person of someone who the teenager does not like for a variety of reasons.

Article 12 of the Law on Guardianship and Trusteeship allows for so-called preliminary guardianship and trusteeship, when the establishment of guardianship relations does not tolerate delay. But in such cases, a superficial selection of a suitable candidate is unlikely to be acceptable. It is better to spend a few extra days identifying a suitable guardian (trustee) than to entrust the child to a “random” teacher. And if it is not possible to quickly collect documents, the minor may be placed in a temporary residence organization, for example, in an orphanage. From preliminary guardianship(trusteeship) should be distinguished between guardianship or guardianship for a time - temporary guardianship (trusteeship) when the need arises.

For the sake of preserving family contacts, it is advisable not to separate minor brothers and sisters when placing them under guardianship (trusteeship). But it is not always possible to assign one guardian (trustee) to all of them. Moreover, as a rule, they want to be together and categorically object to any separation. However, it is possible in cases where, for example, children do not even know whether they still have brothers and sisters or when one of them is in a nursing home and it is almost impossible to transfer him to the guardianship (trusteeship) of the same person.

The Law on Guardianship and Trusteeship, transferring family law relations to civil law, provides for the conclusion of an agreement on the transfer of a child who has lost parental care to guardianship (trusteeship). This obliges the guardianship and trusteeship authorities to conclude such an agreement, which somewhat complicates the formal side of establishing relations of guardianship (trusteeship) over minors. But this is a legal requirement that must be fulfilled. As for the foster family, it was previously based on an agreement between the guardianship and trusteeship authorities and foster parent.

When the law of a subject of the Russian Federation provides for patronage of a child who has lost parental care, the conclusion of such an agreement is prescribed by the Family Code, i.e. act of federal significance. The procedure for preparing a child for guardianship (trusteeship) ends with the adoption by the guardianship (trusteeship) authorities of an appropriate decision (resolution), now called an act in the Family Code. There is no need to describe the circumstances of the case in detail here. It is enough to indicate who and why becomes the guardian (trustee) of the minor(s), indicating their last name, first name, patronymic, and year of birth.

Chapter 20. CUSTODY AND TRUSTEE OF CHILDREN
Article 145. Children over whom guardianship or trusteeship is established
1. Guardianship or trusteeship is established over children left without parental care (clause 1 of Article 121 of this Code), for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests.
2. Guardianship is established over children under the age of fourteen.
Guardianship is established over children aged fourteen to eighteen years.
3. The establishment and termination of guardianship or trusteeship of children are determined by the Civil Code of the Russian Federation.

Article 146. Guardians (trustees) of children
1. Only adults with legal capacity can be appointed as guardians (trustees) of children. Persons deprived of parental rights cannot be appointed as guardians (trustees).
2. When assigning a guardian (trustee) to a child, the moral and other personal qualities of the guardian (trustee), his ability to perform the duties of a guardian (trustee), the relationship between the guardian (trustee) and the child, the attitude of the guardian (trustee’s) family members towards the child are taken into account, and also, if possible, the desire of the child himself.
3. Persons with chronic alcoholism or drug addiction, persons suspended from performing the duties of guardians (trustees), persons with limited parental rights, former adoptive parents, if the adoption was canceled due to their fault, as well as persons who, for health reasons (clause 1 of Article 127 of this Code) cannot fulfill the responsibilities of raising a child.

Article 147. Guardianship (trusteeship) of children in educational institutions, medical institutions and social protection institutions
1. Children who are under full state care in educational institutions, medical institutions, social protection institutions and other similar institutions are not assigned guardians (trustees). The implementation of their duties is entrusted to the administration of these institutions.
Temporary placement of a child by a guardian (trustee) in such an institution does not terminate the rights and obligations of the guardian (trustee) in relation to this child.
2. Guardianship and trusteeship authorities exercise control over the conditions of detention, upbringing and education of children located in the institutions specified in paragraph 1 of this article.
3. Protection of the rights of graduates of the institutions specified in paragraph 1 of this article is entrusted to the guardianship and trusteeship authorities.

Article 148. Rights of children under guardianship (trusteeship)
1. Children under guardianship (trusteeship) have the right to: be raised in the family of a guardian (trustee), be cared for by a guardian (trustee), live together with him, except for the cases provided for in paragraph 2 of Article 36 of the Civil Code of the Russian Federation; providing them with conditions for maintenance, upbringing, education, comprehensive development and respect for their human dignity; alimony, pensions, benefits and other social payments due to them; maintaining ownership of residential premises or the right to use residential premises, and in the absence of residential premises, have the right to obtaining residential premises in accordance with housing legislation; protection from abuse by a guardian (trustee) in accordance with Article 56 of this Code.
2. Children under guardianship (trusteeship) also have the rights provided for in Articles 55 and 57 of this Code.

Article 149. Rights of children left without parental care and in educational institutions, medical institutions and social protection institutions
1. Children left without parental care and located in educational institutions, medical institutions, social protection institutions and other similar institutions have the right to: maintenance, upbringing, education, comprehensive development, respect for their human dignity, ensuring their interests; due to them alimony, pensions, benefits and other social payments; retention of ownership of residential premises or the right to use residential premises, and in the absence of residential premises, they have the right to receive residential premises in accordance with housing legislation; employment benefits provided for by labor legislation, upon graduation stay in these institutions.
2. Children left without parental care and located in the institutions specified in paragraph 1 of this article also have the rights provided for in Articles 55 - 57 of this Code.

Article 150. Rights and obligations of a child’s guardian (trustee)
1. The guardian (trustee) of a child has the right and obligation to raise a child under guardianship (trusteeship), take care of his health, physical, mental, spiritual and moral development.
The guardian (trustee) has the right to independently determine the ways of raising a child under guardianship (trusteeship), taking into account the opinion of the child and the recommendations of the guardianship and trusteeship body, as well as in compliance with the requirements provided for in paragraph 1 of Article 65 of this Code.
The guardian (trustee), taking into account the child’s opinion, has the right to choose educational institution and forms of education for the child, and is also obliged to ensure that the child receives basic general education and create conditions for them to receive secondary (complete) general education.
(as amended by Federal Law No. 194-FZ of July 21, 2007) 2. The guardian (trustee) has the right to demand in court the return of a child under guardianship (trusteeship) from any persons who hold the child without legal grounds, including from the child's close relatives.
3. A guardian (trustee) has no right to prevent a child from communicating with his parents and other close relatives, except in cases where such communication does not meet the interests of the child.
4. The civil rights and obligations of a guardian (trustee) are determined by Articles 36 - 38 of the Civil Code of the Russian Federation.
5. Responsibilities for guardianship and trusteeship in relation to a child under guardianship (trusteeship) are performed by the guardian (trustee) free of charge.
To support the child, the guardian (trustee) is paid monthly cash in the manner and amount established by the laws of the constituent entity of the Russian Federation.
(as amended by Federal Law dated August 22, 2004 N 122-FZ)

2. Guardianship is established over children under the age of fourteen.

Guardianship is established over children aged fourteen to eighteen years.

3. Relations arising in connection with the establishment, implementation and termination of guardianship and trusteeship of children left without parental care are regulated by the Civil Code of the Russian Federation, the Federal Law “On Guardianship and Trusteeship” and other regulatory legal acts of the Russian Federation adopted in accordance with them , unless otherwise provided by this Code and other regulatory legal acts containing family law norms.

5. Transferring brothers and sisters under guardianship or trusteeship to different persons is not permitted, except in cases where such transfer is in the interests of the children.

6. Placement of a child under guardianship or trusteeship is permitted in accordance with the Federal Law “On Guardianship and Trusteeship” under an agreement on the implementation of guardianship or trusteeship, including under an agreement on a foster family, or in cases provided for by the laws of the constituent entities of the Russian Federation, under an agreement on foster family (foster care, foster care).

Chapter 20. CUSTODY AND TRUSTEE OF CHILDREN

Article 145. Establishment of guardianship or guardianship over children left without parental care

1. Guardianship or trusteeship is established over children left without parental care (clause 1 of Article 121 of this Code), for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests.
2. Guardianship is established over children under the age of fourteen.
Guardianship is established over children aged fourteen to eighteen years.
3. Relations arising in connection with the establishment, implementation and termination of guardianship and trusteeship of children left without parental care are regulated by the Civil Code of the Russian Federation, the Federal Law “On Guardianship and Trusteeship” and other regulatory legal acts of the Russian Federation adopted in accordance with them , unless otherwise provided by this Code and other regulatory legal acts containing family law norms.
4. The placement of a child under guardianship or trusteeship is carried out taking into account his opinion. The appointment of a guardian for a child who has reached the age of ten years is carried out with his consent.
5. Transferring brothers and sisters under guardianship or trusteeship to different persons is not permitted, except in cases where such transfer is in the interests of the children.
6. Placement of a child under guardianship or trusteeship is permitted in accordance with the Federal Law “On Guardianship and Trusteeship” under an agreement on the implementation of guardianship or trusteeship, including under an agreement on a foster family, or in cases provided for by the laws of the constituent entities of the Russian Federation, under an agreement on foster family (foster care, foster care).
7. When placing a child under guardianship or trusteeship under an agreement on guardianship or trusteeship, the adoption of an act of the guardianship and trusteeship authority on the appointment of a guardian or trustee who performs his duties for a fee is required.
If the guardianship and trusteeship body, which has adopted an act on the appointment of a guardian or trustee performing their duties for compensation, unjustifiably evades concluding an agreement on the implementation of guardianship or trusteeship, the guardian or trustee has the right to present to the guardianship and trusteeship body the requirements provided for in paragraph 4 of Article 445 of the Civil Code of the Russian Federation .
When a child is placed under guardianship or trusteeship under a guardianship or trusteeship agreement, the rights and obligations of the guardian or trustee to represent and protect the rights and legitimate interests of the child arise from the moment the guardianship and trusteeship authority adopts an act on the appointment of a guardian or trustee. The right of a guardian or trustee to remuneration arises from the moment of conclusion of this agreement.

Article 146. Guardians (trustees) of children

1. Only adults with legal capacity can be appointed as guardians (trustees) of children. The following cannot be appointed as guardians (trustees):
persons deprived of parental rights;
persons who have or have had a criminal record, are or have been subject to criminal prosecution (with the exception of persons against whom criminal prosecution was terminated on rehabilitative grounds) for crimes against life and health, freedom, honor and dignity of the individual (with the exception of illegal placement in a psychiatric hospital, slander and insults), sexual integrity and sexual freedom of the individual, against family and minors, public health and public morality, as well as against public safety;
persons who have an unexpunged or outstanding conviction for serious or especially serious crimes;
persons who have not undergone training in the manner established by paragraph 4 of Article 127 of this Code (except for close relatives of children, as well as persons who are or were adoptive parents and in respect of whom the adoption has not been canceled, and persons who are or were guardians (trustees) children and who have not been suspended from performing their duties);
persons who are in a union concluded between persons of the same sex, recognized as a marriage and registered in accordance with the legislation of the state in which such marriage is permitted, as well as persons who are citizens of the said state and are not married.
2. When assigning a guardian (trustee) to a child, the moral and other personal qualities of the guardian (trustee), his ability to perform the duties of a guardian (trustee), the relationship between the guardian (trustee) and the child, the attitude of the guardian (trustee’s) family members towards the child are taken into account, and also, if possible, the desire of the child himself.
3. Persons with chronic alcoholism or drug addiction, persons suspended from performing the duties of guardians (trustees), persons limited in parental rights, former adoptive parents, if the adoption was canceled due to their fault, as well as persons suffering from illnesses are not appointed as guardians (trustees). , in the presence of which a person cannot accept a child under guardianship, trusteeship, or take him into a foster or foster family (clause 1 of Article 127 of this Code). Medical examination of persons wishing to take custody (trusteeship), into a foster or foster family of children left without parental care, is carried out within the framework of the program of state guarantees of free medical care to citizens in the manner established by the federal executive body authorized by the Government of the Russian Federation.

Article 147. Lost force on September 1, 2008. - Federal Law of April 24, 2008 N 49-FZ.

Article 148. Rights of children under guardianship (trusteeship)

1. Children under guardianship (trusteeship) have the right to:
upbringing in the family of a guardian (trustee), care from the guardian (trustee), living together with him, with the exception of cases provided for in paragraph 2 of Article 36 of the Civil Code of the Russian Federation;
providing them with conditions for maintenance, upbringing, education, comprehensive development and respect for their human dignity;
alimony, pensions, benefits and other social payments due to them;
maintaining ownership of residential premises or the right to use residential premises, and in the absence of residential premises, have the right to receive residential premises in accordance with housing legislation;
protection from abuse by a guardian (trustee) in accordance with Article 56 of this Code.
2. Children under guardianship (trusteeship) also have the rights provided for in Articles 55 and 57 of this Code.
3. Children under guardianship or trusteeship have the right to maintenance, funds for which are paid monthly in the manner and in the amount established by the laws of the constituent entities of the Russian Federation, with the exception of cases where guardians or trustees are appointed at the request of parents in the manner determined Part 1 of Article 13 of the Federal Law “On Guardianship and Trusteeship”. The specified funds are spent by guardians or trustees in the manner established by Article 37 of the Civil Code of the Russian Federation.

Article 148.1. Rights and obligations of a child's guardian or trustee

1. The rights and obligations of a child’s guardian or trustee arise in accordance with the Federal Law “On Guardianship and Trusteeship”.
2. Unless otherwise established by federal law, the child’s parents or persons replacing them lose their rights and obligations to represent and protect the rights and legitimate interests of the child from the moment the rights and obligations of the guardian or trustee arise.
3. Any actions (inaction) to exercise guardianship or trusteeship by a guardian or trustee of a child may be appealed by the parents or other relatives or adoptive parents of the child to the guardianship and trusteeship authority.
The guardianship and trusteeship authority has the right to oblige the guardian or trustee to eliminate violations of the rights and legitimate interests of the child or his parents or other relatives or adoptive parents. If the guardian or trustee does not obey the decision of the guardianship and trusteeship authority, the parents or other relatives or adoptive parents of the child have the right to apply to the court with a demand to protect the rights and legitimate interests of the child and (or) their rights and legitimate interests. The court resolves the dispute based on the interests of the child and taking into account his opinion. Failure to comply with a court decision is grounds for removing a guardian or trustee from performing their duties.
4. A guardian or trustee has the right to demand, on the basis of a court decision, the return of a child under guardianship or trusteeship from any persons holding the child without legal grounds, including from parents or other relatives or adoptive parents of the child.
5. A guardian or trustee does not have the right to prevent a child from communicating with his parents and other relatives, unless such communication is not in the interests of the child.
6. A guardian or trustee of a child has the right and obligation to raise a child under their guardianship or trusteeship, to take care of the health, physical, mental, spiritual and moral development of the child.
A guardian or trustee has the right to independently determine the ways of raising a child under guardianship or trusteeship, taking into account the opinion of the child and the recommendations of the guardianship and trusteeship body, as well as in compliance with the requirements provided for in paragraph 1 of Article 65 of this Code.
A guardian or trustee has the right to choose an educational organization, the form of education the child receives and the form of his education, taking into account the opinion of the child before he receives basic general education, and is obliged to ensure that the child receives general education.
7. The property rights and obligations of a guardian or trustee are determined by civil legislation, as well as the Federal Law “On Guardianship and Trusteeship”.
8. Supervision over the activities of guardians or trustees of minor citizens is carried out in accordance with the Federal Law “On Guardianship and Trusteeship”.

Family Code of the Russian Federation (RF FC) Section VI. Forms of raising children left without parental care Chapter 20. Guardianship and trusteeship of children Article 145 of the RF IC. Establishment of guardianship or guardianship over children left without parental care

2. Guardianship is established over children under the age of fourteen.

Guardianship is established over children aged fourteen to eighteen years.

3. Relations arising in connection with the establishment, implementation and termination of guardianship and trusteeship of children left without parental care are regulated by the Civil Code of the Russian Federation, the Federal Law “On Guardianship and Trusteeship” and other regulatory legal acts of the Russian Federation adopted in accordance with them , unless otherwise provided by this Code and other regulatory legal acts containing family law norms.

5. Transferring brothers and sisters under guardianship or trusteeship to different persons is not permitted, except in cases where such transfer is in the interests of the children.

6. Placement of a child under guardianship or trusteeship is permitted in accordance with the Federal Law “On Guardianship and Trusteeship” under an agreement on the implementation of guardianship or trusteeship, including under an agreement on a foster family, or in cases provided for by the laws of the constituent entities of the Russian Federation, under an agreement on foster family (foster care, foster care).