Judicial penalty in child custody cases: history, legal basis, principles, and application possibilities
DOI:
https://doi.org/10.17308/law/1995-5502/2026/2/134-142Keywords:
astreinte, enforcement of court decisions on upbringing, child disputes, child's residence, disputes over the exercise of parental rights by separately residing parentAbstract
The author briefly highlights the history of the emergence of judicial penalties (astreinte) in foreign legal systems, showing the differences in its legal regulation. The main stages of the appearance of astreinte in Russian law are characterized. The author presents the main controversial approaches to determining the legal nature of this institution, giving his own assessment on the issue. Attention is paid to judicial practice, investigating the reasons behind the courts' established approach to the issue of recovering judicial penalties. The main rules that the court follows when imposing judicial penalties are outlined. The issue of the applicability of astreinte to specific family law disputes is raised, specifically to disputes over the determination of residence and the exercise of parental rights by parents living separately. The reasons for non-compliance with court decisions in this category of cases are examined, and a negative assessment is given to the sanctions provided for failure to comply with court orders. The probable pros and cons of using judicial penalties are analyzed, and possible objections on this matter are anticipated. The conclusion is drawn about the necessity of active application of the institution of judicial penalties in disputes over the determination of residence and the exercise of parental rights by parents living separately.
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