Establishment of the limits of government interference in parent-child relations

Kurchinskaya-Grasso Natalia International Law Scholar, Grasso Law Firm (Italy – Russia) 90046, Italiya, g. Monreale, ul. Xvi Marzo, 18 natgrasso@libero.it Other publications by this author

While the legal regulation of economic relations is developing towards greater discretion of individuals, which even allows us to talk about the privatization of law ^[6], personal non-property relations, on the contrary, are experiencing an increasing impact of the state. Note that Russia is no exception. The new version of the Constitution of the Russian Federation ^[1] fixed the principles of special protection of fatherhood, motherhood and childhood, caused a change in the role of the state in child-parent relations, providing state support for family, motherhood, fatherhood and childhood, i.e. including parental responsibility, state protection of motherhood and childhood (Part 1 of Article 38 of the same act). Finally, paragraph g.1 of Article 72 of the Constitution of the Russian Federation indicated, among other things, such a function of the state as creating conditions for decent upbringing of children in the family. Thus, the provision of parental responsibility, the protection of motherhood and fatherhood is rightfully attributed to the foundations of the constitutional system of Russia.

The originality of the constitutional provisions lies in the fact that the subject of protection is, among other things, motherhood, while foreign legal regulations are aimed at protecting women's rights in general. 

Often it is family, child-parent relations that serve as an example of contradictions between Russia and Western countries. Firstly, the topic of the relationship between parents and children is one of the most sensitive for any society, and secondly, it is family relations, and in particular the relationship between parents and children, that ensure the accumulation of large fortunes. Thirdly, a person burdened with family ties is much less inclined to radical solutions to the tasks facing him and in general, to a lesser extent, is independent in his actions. On the one hand, the state is interested in supporting family relations, the continuity of generations, on the other hand, the family, being a much stronger unifying factor than having a common citizenship and living in a territory with a relatively unified legal regime, is a serious competition for the state ^[9]. In this regard, it is advisable to conduct a comparative legal study of the limits of state intervention in child-parent relations in states whose political systems in Russia are usually classified as a single category of "Western". A well-known French expert in the field of legal theory, Norbert Roulan, points out that if a lawyer of a country of continental law first talks about the theory, then giving examples of its implementation, then his colleague from a state whose legal system is based on Anglo-Saxon, on the contrary, will prefer to draw theoretical conclusions based on the study of judicial practice ^[8].

USA

US family law has historically developed at the state level, which naturally gave rise - according to Vivian E. Hamilton - to chaos ^[21]. State legislatures are authorized to define the concept of "family", they are responsible for the legal regulation of not only the "life cycles" of marital relations, but also relations between parents and children, including issues of adoption, ensuring the well-being of children, obligations to support the family and family-property relations. Finally, it is the state-level courts that consider family disputes. In fact, a "multi–storey" legal regulation has emerged in the United States - federal, state and municipal authorities adopt and apply laws, by-laws and judicial practice. At the same time, they can adhere to completely different principles. 

 The US Constitution defined the general principles of the division of competence between the federation and the states, as well as between the states themselves [2 p.29-49]. Thus, the Constitution contains requirements for states to provide "full faith and credit" to acts of public authority, evidence and judicial procedures conducted on the territory of other states. Congress is given the right to independently determine the procedure for accepting evidence of the existence of such acts, evidence and judicial procedures. In accordance with the Tenth Amendment to the US Constitution (The Tenth Amendment (Amendment X)), all powers not assigned to the jurisdiction of the federal government were declared to belong specifically to the states or the population.

Since the 30s of the last century, numerous exceptions have been formed from the principle of attributing family law issues to the competence of the states in favor of the US Congress. Even in the McCulloch v. Maryland (1819) dispute considered by the Supreme Court, the US Congress still had the right to legislate on issues not directly named in the US Constitution, but arising from its meaning. In a number of US states, there are and apply the norms of legislation adopted in contradiction with federal laws. It must be said that the US Supreme Court rejects the idea of the possibility of repealing federal laws by state-level laws ^[25]. 

In Cooper v. Aaron (1958), the U.S. Supreme Court agreed with the opinion that a federal law "... cannot be overtly and directly repealed by a state legislature or state-level executive or court officials, nor can it be overturned by them indirectly through the use of schemes to circumvent the law..."^[13].

The Supreme Court has introduced for itself and subordinate federal courts the authority to interpret the provisions of the Constitution and amendments thereto, as well as to declare invalid laws issued by the US Congress and any acts of state authorities in case of their contradiction to the Constitution.

In the decision of the US Supreme Court in the Bush v. Gore dispute (2000), it was stated that the US states are not completely free in their actions and their sovereignty is limited by their union with other states ^[12].

Such an excursion into the problems of the division of powers between the US states and the federal center would be superfluous if the most sensitive issues of child-parent relations were not resolved on the basis of the juxtaposition of the law of the states and the federal center. A typical example was the Defense of Marriage Act (DOMA) of 1996 ^[15], when the decision of the Supreme Court of the State of Hawaii actually authorized the recognition of same–sex marriages at the state level - according to DOMA, federal law recognizes only marriages between a man and a woman, and no state can be forced to recognize same-sex marriages committed on the territory of another state.

The means of strengthening the federal center in the United States is an expansive interpretation of the Trade Clause (the Commerce Clause, the Full Faith and Credit Clause) ^[3]. The US Congress used it to strengthen its powers in the following way: by creating a federal-level social assistance system, it conditioned its development and functioning, as well as financial support by changing state legislation regulating child-parent relations towards greater compliance with federal laws. A typical example was the state program "Assistance to Families with Dependent Children" (AFDC), provided for by the US Social Security Act of 1935. This program assumed a kind of partnership between the federal government and the states and provided for the payment of a minimum payment to single-parent families, provided that the relevant state adopts an appropriate plan. The Family Support Act of 1988 required states to introduce "advisory" guidelines involving the development of accelerated procedures for establishing paternity in relation to a minor child ^[28]. 

The Child Abuse Prevention and Treatment Act of 1974 ^[33], requires states to consolidate legal definitions of abuse of parental rights and neglect of the interests of children, expand the list of persons obliged to report cases of abuse of parental rights and provide a 24-hour hotline for receiving relevant messages, and also appoint officials – judicial guardians (guardians ad litem) to consider cases of abuse of parental rights and neglect of the interests of children. A judicial guardian is appointed by the court, including when considering custody disputes over a child, either independently or at the request of a party to the court proceedings. Its task is to ensure the best interests of the child. The judicial guardian does not depend on any of the parties, and his task is to provide a report on the situation of the parties to the court.

 As a typical example of detailed regulation of state intervention in the sphere of parental responsibility, it is advisable to cite the state of Florida. The legislation of this state is characterized by the highest level of detail and the most informal approach to determining the time of access of divorced parents to common children. Contrary to popular public opinion, a person who spends more time with a child before filing a claim does not have any preferential access rights. According to Article 61.13(2)(c) of the Florida Statute ^[35], the only criterion is the best interests of the child. The judge, of course, can take into account any factor when considering a particular dispute, but the law - 61.13(3)(b) of the Florida Statute - contains an open list of legally significant factors that the court is obliged to take into account. The author of this article considers it appropriate to list them in full.

These include:

• demonstrated ability and inclination of each parent to promote and encourage close and ongoing relationships between parents and children, to comply with the time-sharing schedule;

• expected separation of parental responsibilities after the trial, including the extent to which parental responsibilities will be delegated to third parties;

• demonstrated ability and inclination of each parent to identify, take into account and act in accordance with the needs of the child in contrast to the needs or desires of the parent;

• the child's life expectancy in a stable, satisfactory environment and the desirability of maintaining continuity;

• "geographic viability" of the parental responsibility plan with special attention to the needs of school-age children and the amount of time that needs to be spent on trips to fulfill this plan;

• the moral state of parents, their mental and physical health;

• information about the child at home, at school and in society;

• reasonable preference of the child, if the court considers that the child has sufficient intelligence, understanding and experience to express a preference;

• demonstrated knowledge, abilities and inclination of each parent to be informed about the circumstances of the minor child's life, including, but not limited to, the child's friends, teachers, medical professionals, daily activities and favorite things;

• demonstrated ability and inclination of each parent to provide a child with a constant daily routine, for example, the schedule of homework, meals and bedtime;

• demonstrated ability of each parent to communicate with the other parent and inform him about problems and actions concerning a minor child, as well as the willingness of each parent to take a unified position on all major issues when working with a child;

• evidence of domestic violence, sexual violence, child abuse, abandonment or neglect of children, regardless of whether legal proceedings have been initiated on these issues, as well as the fact that one of the parents knowingly provided false information to the court about these facts;

• the specific parental responsibilities normally performed by each parent and the separation of parental responsibilities before and during the trial, including the extent to which parental responsibilities were assumed by third parties;

• demonstrated ability and aptitude of each parent to participate and take part in the child's school and extracurricular activities;

• demonstrated ability and inclination of each parent to maintain an environment free of substance abuse for the child;

• the ability and intention of each parent to protect the child from ongoing litigation, which is demonstrated by refusing to discuss the trial with the child, refusing to exchange documents or electronic media related to the trial with the child and refraining from disparaging comments to the other parent in front of the child;

• the stages of development and needs of the child, as well as the demonstrated abilities and propensity of each parent to meet the age needs of the child.

In 2002, the State of Florida approved the Uniform Act on the Enforcement of Custody Decisions (the Uniform Child Custody Enforcement Act, 1999) ^[34]. On its basis, the question of which state has the authority to perform guardianship functions on behalf of the state is resolved. This measure is aimed at eliminating the practice of a kind of "forum shopping" ^[7] – changing the place of residence in order to avoid the application of the "less profitable" law of a particular state. State courts issue decisions on forms of parental custody and access rights (a child custody order), which are enforceable throughout the United States, and local courts have no right to change it. It also contains the definition of the child's domicile (home state) – the place where the child lives for at least 6 months in a row before the parents file a lawsuit. If no state meets this criterion, the state with which the minor has the closest connection (the state with the most significant connection) is considered as such. The fact that this Act was approved by the state of Florida is also significant because it was the basis for the latter's entry into legal force in the states that approved it (more precisely, throughout the United States, except Puerto Rico and Massachusetts). Briefly, the essence of this Act is as follows: the state court at the child's place of residence has the exclusive right to change the decision on custody of the child, and all other states are bound by this decree. In addition, even if the child resides in another state for more than 6 months, the domicile state still has exclusive jurisdiction over custody disputes as long as one of the parents continues to reside in its territory.  

The courts of the State of Florida, when resolving a dispute between parents, draw up or approve a parenting plan (a parenting plan), which contains the principles of the distribution of parental responsibility and decision-making in relation to the parties to the litigation. At a minimum, the parental responsibilities plan contains provisions on the custody of the child, access to it and responsibility for it. In addition, the plan should contain an indication of the time that children should spend together with each of the parents and the distribution of parental responsibilities for ensuring the child's health, issues related to the child's school education and spending his free time. The law does not contain uniform requirements for a parental activity plan – the courts of the state of Florida decide this issue case-by-case. The court develops a plan that best suits the interests of the child, paying special attention to the schedule of contacts with parents (a common timesharing schedule). The judicial practice of the state has developed 5 models for the implementation of access rights to a child ^[30]:

1. Weekly exchange – used by state courts in cases where both parents have similar work schedules and there is no need to combine time and days for contacts with children.

2. Two-week contact (Two weeks at a time) – involves spending more time in each house and, as a rule, is used for older children, especially for teenagers. 

3. Program 3-4-4-3 (A 3-4-4-3 schedule) – a two-week regime, in which during the first week one parent (say, mom) has access rights to children for 4 days, and the other parent (dad) - for 3 days; next week the order changes, and dad has 4 days, and mom has 3 days.

4. Program 2-2-5-5 (A 2-2-5-5 schedule) – another two-week regime, which allows each parent to receive first two-day and then five-day blocks of communication time with children. For example, children stay with mom for two days, and then with dad, then they return to mom for 5 days, and the next 5 days stay with dad, after which the cycle repeats.

5. Program 2-3-2 (A 2-3-2 schedule) – a weekly schedule that alternates between mom and dad every week. For example, on the 1st week, mom gets access rights to children for 2 days, then dad spends 3 days with them, and then minors return to mom for 2 days, and the next week mom gets 3 days between two contacts with dad for 2 days each.

The uncontested case category includes Markham v. Markham ^[24], from the materials of which it follows that the parents reached an agreement on the distribution of parental responsibility, but the judges decided that it contradicts the law and policy of the state of Florida. If the court decides on the division of parental responsibility (shared parental responsibility), then the advantage of one parent over the other is unacceptable. However, there is an exception to this rule – parental responsibility for the child's education or health may be transferred by the court to one of the parents if the court decides that separate parental responsibility is impracticable (see, for example, the Wilson v. Wilson 2002 precedent). 

If no agreement has been reached between the parents, the judge independently develops the terms of the parental activity plan based, of course, on his own ideas regarding the specific content of the abstract wording of the law "the best interests and welfare of the child" ^[14]. At the same time, the judge has the right to take into account all significant circumstances – the child's relationship with both parents, the child's special needs, the history of cases of domestic violence and the preferences of the child himself ^[16].

Previously, the legal approach to family relations in the United States was based on the decision of the US Supreme Court, which characterized family relations as a private sphere of the family in which the state cannot interfere (the private realm of family life which the state cannot enter) ^[31]. Of course, such a position of absolute immunity of the family resulted in numerous abuses of parental rights, and the courts even justified the rape of children by parents ^[29]. However, a number of researchers note that at present the pendulum has swung to the other extreme – towards increased state attention to families and even criminalization of some forms of parental behavior. Thus, the criminalization of forms of family relations is indicated by law professor Donald Dripps ^[18]. Another lawyer, Eric Luna, writes that criminal penalties should be applied to certain forms of behavior and mental states that are so illegal and harmful to their immediate victims or to society as a whole that imprisonment based on a conviction is a well-deserved measure ^{[20, c 703, 704]}. The inflexibility of law enforcement is also noted - its results often contradict the wishes of the injured person. At the same time, the state of protection of children from abuse of parental rights leaves much to be desired – researcher Jane Stover in her article [22 p.189, 193-194] describes the reaction of the authorities to a situation when the biological father of children, who had not appeared for years, suddenly appeared in their place of residence with their mother, beat her and abducted the children, demanding from a woman in exchange for their return to marry him. The judge of the family dispute court found an excuse for the man's actions - "it looks like his heart is just broken"; for a long time he found out whether the court had competence to protect children and reluctantly issued a temporary protection order. The police refused to take any action, citing the lack of a permanent protection order, and the police representative expressed doubts that "could there really be a place safer for children than being with their father?" ^[23]. Jane Stover, however, somewhat contradicts her arguments, pointing out that children held by a parent to the detriment of the interests of another parent often suffer other types of abuse of parental rights, because, as a rule, the abducting parent does not bother to provide medical care to the child, providing the child with normal housing and education because of the need to hide from the authorities. On the other hand, she claims that the police, having learned that the child is with one of the parents, prefers not to interfere.

The Anglo–Saxon legal doctrine is familiar with the term parens patriae - the authority of the state power to act in order to protect the rights and well-being of persons who are unable to act based on their own best interests ^{[17, pp.1156,1198-1199]}. Due to the fact that children were treated as property, parents bore the primary responsibility for the upbringing of their descendants in any way they deem appropriate. However, when the children reached the age of 7 or committed a crime, the chancellors, acting as agents of the king, considered cases concerning young people. The minor did not have his own rights and was actually under the guardianship of the court. Thus, the courts were faced with the task of ensuring their well-being. While parents were responsible only for childbearing, the State had a basic and legitimate interest in raising children.

There is a twofold understanding of interest as a legal category. The first concept is expressed in the words of Rudolf Iering: "interest in the subjective sense indicates a sense of dependence in life. The reason why I am interested in a certain thing or attitude lies in the fact that I feel my dependence on them in my existence and well-being, in my contentment and happiness. Interest, therefore, is the essence of life requirements in a broad sense" ^{[4, p.36]}. N.M. Korkunov speaks from a somewhat different position, pointing out that "our interests are not exclusively our personal, individual interests. Most of them are the common interests of either the whole of humanity, or at least a well-known group of people. And in the exercise of these common interests, we may encounter other people, and for them a distinction is required" ^{[5, p.86]}.  

The problem of the child's interests also lies in this contradiction – between his personal interests and the interests of both his parents, each of whom is a priori interested: a) in obtaining access rights to the child and custody of him; b) in reducing the influence of the other parent on him.

Germany

The participation of the European Union in the regulation of family relations is seriously limited compared to the US federal government. The competence of the EU member States is the legal regulation of family life cycles - separation, divorce, issues of parental responsibility, guardianship and guardianship. The role of the EU is to ensure the implementation of decisions taken on the territory of one EU Member State on the territory of other States. Also, the influence of the EU in practice is noticeable in the field of determining the State whose courts are competent to consider a family dispute. That is, outside the scope of EU law is the definition of a person (persons) who have custody rights and (or) access rights, but ensuring the legal validity of custody rights and (or) access on the territory of other states is within the competence of the EU.  

The German legal order, which is not only the object of the influence of EU law, but, as the researchers point out, its active creator, is firstly based on the Romano–German legal system, which is much closer to Russian legislation, and secondly partly based on the decisions of the ECHR, which have legal force in the Russian Federation. Secondary factors are significant personal ties between citizens of Russia and Germany, including in the field of child-parent relations, which gives the study of German law a certain expediency.

The legal regulation of child-parent relations in Germany is based on the hierarchy of normative acts to a greater extent than on judicial practice, which, of course, plays a certain (sometimes very significant) role in filling the gaps of the current legal regulation, but cannot replace the norms of legislation. The main normative act is the German Civil Code (B?rgerliches Gesetzbuch) (BGB) – articles 1297-1921.

Judicial practice includes decisions of the land-level courts of appeal (Oberlandesgerichte, OLG), decisions of the Supreme Court of Germany (Bundesgerichtshof, BGH), the Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG).  

Articles 111 and 112 of the Law on the Resolution of Family Cases and on Contractual Jurisdiction (Das Gesetz ?ber das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) ^[19] regulate procedural issues of family disputes (including disputes about parental responsibility). This category of disputes belongs to the sphere of the professional monopoly of lawyers (Rechtsanw?lte) – the participation of a judicial representative in them is mandatory by virtue of the direct indication of Article 114 of the FamFG. The proceedings begin in the District Court (Amtsgericht) (Article 23a, Constitutional Law on Courts (Das deutsche Gerichtsverfassungsgesetz GVG), in which there is a judge specializing in the resolution of family disputes. In this case, the district court performs the function of the family court (Familiengericht). The consideration of cases of this kind is closed, if both parties did not agree with the court's proposal to make the process open (art. 170, GVG). The appellate instance is the ground-level Court of Appeal (Articles 119 I "a" and "b", GVG), which considers cases composed of three judges. 

The legislation of the Federal Republic of Germany requires, when drafting a statement of claim, to indicate, among other things, data on the parental responsibility, access and custody of minor children agreed by parents.

The court appoints a procedural assistant for a minor child on matters concerning him, and if necessary to protect the interests of the child (Verfahrensbeistand). According to article 158 of the FamFG, the procedural assistant is in contact with both parents, speaks to the child and gives the judge a recommendation, which the latter in most cases follows.

When determining the place of residence of a child , two criteria are traditionally applied: 1) the criterion of habitual location / stay and 2) the criterion of domicile. German law is based on the first criterion. The Supreme Court of the Federal Republic of Germany has determined that the place of habitual residence/stay is the state or territory with which a person has the greatest number of social and economic ties, and this place is the center of his life (BGH FamRZ 2002, 1182 f.). The lower courts clarified these criteria, indicating, among other things, a certain length of stay in this place, which should be something more than a simple pastime. As a rule, a stay of more than 6 months is required. Family and professional relationships should be considered as the criterion of the "center of life" of a person ^[27].

With a plurality of places of stay, the place of habitual residence is where the person in respect of whom it is necessary to answer this question spends the night more times. The place of habitual residence is the one in which the person is actually integrated into the social environment. Unintentional or involuntary presence in a particular territory does not, as a general rule, form a place of habitual residence in the legal sense ^[26]. In relation to minor children, the judicial practice of the German Land courts considers the place of habitual residence/residence to be the place around which their life is concentrated. At the same time, the place of residence of the child may differ from the location of the parent who exercises custody of the minor. As a child grows up, such factors as social ties with family, school and friends become important. In cases of abduction of a child, judicial practice allows changing his place of habitual residence, even if it is contrary to the law, taking into account the center of life of a minor [32. p.129].

German law strictly distinguishes between parental custody (elterliche Sorge) and access rights (Kontaktrecht/Besuchsrecht). Parental care includes the care of the child's personality (Personensorge) and his property (Verm?genssorge).

Joint custody (gemeinsames Sorgerecht), according to German law, means that parents must consult with each other and make joint decisions, for example, on issues regarding religion, education and medical care. Neither parent has the right to make a decision on long-term issues without consulting the other parent, unless the court decides that one of the parents can solve specific issues independently. Only in exceptional cases, the courts transfer sole custody to one of the parents.

The parent with whom the child lives or who has the right to communicate with the child can solve everyday issues without the consent of the other parent. If necessary, one of the parents may apply to the court with a request to make a decision on the place of residence of the child.

 The "exchange model" (Wechselmodel) involving dual residence and joint parental care of the child is currently the subject of debate – whether the court has the right to forcibly assign this custody model to parents, or it is applicable solely on the basis of the parents' agreement on this. Current practice is based on the decision of the Supreme Court of Germany dated 01.02.2017, Number XII ZB 601/15 ^[10], according to which the criterion is the well-being of the child, and the courts have the right to determine his [criterion] by their authority.

On 19.05.2014, new rules of parental responsibility for unmarried parents entered into legal force. Articles 1626 (a) of the BGB and 155 (a) of the FamFG have been amended. Parents who are not married at the date of the child's birth have joint parental responsibility in cases where:

1. they declared their desire to take care of the child together by submitting a declaration of parental custody (Sorgeerkl?rung);

2. they got married;

3. the court gave them joint parental custody of the child.  

On 13.07.2013, the Law on Strengthening the Rights of Biological Fathers was adopted (Gesetz zur St?rkung der Rechte des leiblichen, nicht rechtlichen Vaters, eng. Act to strengthen the rights of the physical, not legal father) ^[11]. The demonstration by the biological father of a sustained interest in the child is a legal basis for obtaining access rights and the right to receive information about him, if this does not contradict the best interests of the child (Article 1686a, BGB) - communication with both parents, as well as with "people with whom the child has connections, if their maintenance contributes to its development" (wenn ihre Aufrechterhaltung f?r seine Entwicklung f?rderlich ist) (article 1626 (3) BGB).

Article 1666 of the BGB provides for the possibility of taking a number of judicial measures in the event of a threat to the best interests of the child. If the physical, mental or emotional well-being of the child or his property is threatened and the parents are unwilling or unable to prevent the danger, the family court must take the measures necessary to prevent the danger. So, if the person who manages the property violates his obligations for the maintenance of the child or his duties related to the management of the property, or does not comply with the court's orders regarding the management of it, it can be assumed that the child's property is under threat.  Judicial measures of a coercive nature include, in particular:

1. granting the right to use state aid, such as social assistance to children and youth, as well as medical services;

2. measures to ensure compliance with compulsory school education;

3. prohibitions temporarily or indefinitely to use a family apartment or another apartment, to stay in a certain part of the apartment or to visit other places that will be determined where the child is regularly;

4. prohibition of establishing contact with a child or meeting with a child;

5. partial or complete deprivation of parental rights.

The court has the right to issue an order to accompany the child if it is necessary to protect his interests. A representative of the German Society for the Protection of Children (Der Deutsche Kinderschutzbund (DKSB) may, by court order, accompany a child during contacts/meetings with a parent, the so-called concomitant contact (begleiteter Umgang) in case of reasonable doubts of one of the parents about the ability of the other to take care of the child. In the case of separation of parents, regardless of whether they are married or not, when the parents cannot agree on the distribution of parental responsibility, either parent can ask the court to decide on the extent and content of access rights.

 In conclusion, the following trends of state interference in family affairs should be noted. First of all, it is the creation of specialized bodies to ensure parental responsibility and their separation from the state, including. This concept is not new: the principle of parens patriae – the authority of the state power to act in order to protect the rights and well-being of persons who are unable to act based on their own best interests originated precisely as a principle of family law in England, based on an approach to children as a specific category of property. Parents were responsible only for the birth of children, the state had a basic and legitimate interest in their upbringing.

The specialization of courts on the distribution of parental responsibility is increasing. Since there is no concept of separation of private and public law in Anglo-Saxon countries, state regulation easily overcomes the boundary of the sphere of free discretion of the subjects of legal regulation. In the USA, the result was a multiplicity of factors that could affect the legal regime of parental responsibility, since in addition to federal legislation, parental responsibility is regulated by state laws and, finally, the judicial practice of the US Supreme Court and state courts.

At the same time, in Germany, the role of administrative bodies in influencing child-parent relations is stronger than in the USA, which is limited to guardian ad litem.

It seems that if the US law and order is based on understanding the best interests of the child through the prism of the interests of both parents, then the German law is based on the personal preferences of the child to a greater extent. If in the USA the place of residence of parents does not matter much when deciding on the access rights of parents, then the courts of Germany have developed detailed rules for determining the habitual place of residence of the child. The "American" approach is explained by the operation of the parens patriae principle, which is based on the concept of the child as property and empowers the State to act in order to protect the rights and well-being of children who are unable to act based on their own best interests.

Another trend in the development of the limits of state intervention is the reduction of the formal approach when deciding on the distribution of parental responsibility. This is typical not only for the USA and Germany, but also for the Russian system. It is enough to pay attention to the practice of applying the most serious, extreme measure of protecting the interests of a child – the deprivation of parental rights, for the application of which the formal existence of one legal basis specified in the law is not enough.

However, it should be noted that there is a greater variety of measures available to the state in Germany and in the USA in order to influence an unscrupulous parent compared to the Russian legal order, which, although it assumes such a measure as restricting the parental rights of a parent who does not fulfill his duties, does not specify the content of this measure and does not grant the court the right to specify its content. Meanwhile, the use of even private–law tools would serve as a serious incentive for parents to fulfill their duties - not so long ago, the tools of creditors under civil obligations were replenished at the expense of an astrent – a court penalty imposed by the court for non-fulfillment by the debtor of their non-monetary (that is, personal non-property, including parental) duties.

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