Who Decides Where a Child Stays During Divorce?

The question of which parent a child will live with during a divorce is both an emotional and legally significant matter. Beyond the breakdown of the marital relationship, the future life and well-being of a minor child largely depend on this decision. Therefore, decisions in this process should be based not on emotions, but on existing legislation and the principle of the child’s best interests.

Court Decision on Child Custody

During a divorce proceeding, the court determines which parent the minor child will live with.

If the parents have a written agreement regarding:

• Child custody,
  
• Child support (alimony),
  
• Visitation and contact arrangements
  

and this agreement does not contradict the child’s best interests, the court may consider it.

However, if:

• No agreement exists, or
  
• The agreement presented contradicts the child’s interests
  

the court will independently decide custody and child support issues based on the relevant provisions of the Family Code.

What Is the Principle of the Child’s Best Interests?

The guiding principle in family law is ensuring the child’s best interests. This principle is recognized in both national legislation and international documents ratified by the Republic of Azerbaijan, including the Convention on the Rights of the Child.

When making decisions, the court evaluates multiple factors:

• The child’s age
  
• Emotional bonds with both parents
  
• The child’s opinion (from a certain age)
  
• Moral and personal qualities of the parents
  
• Each parent’s actual involvement in the child’s upbringing
  
• The living environment, education, and development opportunities provided
  
• Parents’ family and financial situation, work schedule, and health
  
• The child’s accustomed social environment—residence, school, and siblings
  

Financial resources alone are not the decisive factor. Having higher income does not automatically mean the child will live with that parent. The key consideration is which parent can provide a more suitable environment for the child’s physical, psychological, and social development.

Is the Child’s Opinion Considered in Divorce?

According to legislation:

• The opinion of a child aged 10 or older must be taken into account by the court.
  
• In many cases, courts also consider the opinions of children aged 7 and above.
  

However, the child’s opinion is not the sole criterion. The court must ensure that the child’s views are formed independently, without undue influence from either parent.

To do this, the child is usually interviewed in the presence of a pedagogue, psychologist, or a representative of the guardianship authorities.

Sibling Considerations

Courts are generally advised that:

• Siblings should, except in special cases, stay with the same parent.
  
• Maintaining contact and growing up together in the same family environment is considered beneficial for their psychological and social development.
  
• Separation of siblings is only considered if it is strictly necessary for the child’s best interests.
  

Role of Guardianship Authorities

If custody is highly contested or a parental agreement harms the child’s interests, the court may involve guardianship and custodial authorities in accordance with the Family Code.

These authorities:

• Inspect both parents’ living conditions
  
• Assess the suitability of the environment for the child
  
• Provide the court with a justified opinion on the most appropriate custody arrangement
  

This opinion is not binding, but serves as an important piece of evidence for the court.

Enforcement of Court Decisions

Sometimes, even after a court decision, the child may live with a parent different from the one designated in the ruling. In such cases, the court must clearly specify:

• Which parent the child is taken from
  
• Which parent the child should live with
  
• The method and timing of enforcement, if necessary
  

This clarity prevents legal uncertainty during enforcement.

Visitation Rights After Divorce

Custody does not completely remove the other parent’s rights to interact with the child.

The court can:

• Define visitation schedules for the parent not living with the child
  
• Regulate meetings during holidays, weekends, and vacations
  

If the custodial parent unreasonably interferes with visitation, it may be considered non-compliance with the court order and a violation of the child’s rights.

Temporary Measures During Divorce

If custody disputes are ongoing but the process is lengthy, the Civil Procedural Code allows temporary measures:

• The non-custodial parent can request minimal contact rights
  
• This ensures that the child maintains a connection with both parents and avoids long-term emotional harm
  

How Courts Assess Parents’ Financial Situation

When deciding custody and child support, the court considers:

• Both parents’ income and actual expenses
  
• The child’s previous living standards
  
• Expenses for education, health, and development (school, courses, sports, music, etc.)
  

Credit obligations, rent, and other personal expenses do not automatically reduce child support. The main criterion remains meeting the child’s minimum required living standards.

Reference link.

Child Support (Alimony)

Regardless of which parent the child lives with, the other parent is legally obliged to contribute financially to the child’s upbringing.

The court may determine child support as:

• A portion of the parent’s income
  
• A fixed monetary amount
  
• Or a combination of both
  

The amount should balance the parent’s actual capabilities and the child’s rights.

For more information on alimony, click here.

Court Practice

These provisions reflect both the Family Code requirements and the Supreme Court’s summarized practice regarding divorce, custody, and child support.

Courts are advised to evaluate each case individually, taking into account:

• The child’s psychological and social state
  
• Parents’ behavior and commitment
  
• All factual circumstances
  

Conclusion

Decisions about child custody during divorce:

• Should be based on law and the child’s best interests, not emotions
  
• Are determined by concrete facts and evidence, not stereotypes or financial status
  
• Aim to protect the child’s physical, psychological, intellectual, and social development
  

Professional legal assistance is recommended for divorce, child custody, alimony, and parental rights issues. Working with a family law specialist ensures the child’s interests and parents’ rights are legally protected.

Arbitro provides professional legal services in family and civil law, ensuring effective representation and protection of citizens’ rights. Arbitro offers full legal support, acting as a reliable partner in family and civil