Доктрина непосредственного (фактического) родительства в российском и зарубежном семейном праве

Introduction: there is no integral theoretical concept of parenthood in law, and the question of a possible positive differentiation of this type of status is not discussed. Some aspects of parental theory are sporadically covered in the literature, but, not being embedded in the general concept of parenthood, they only remain individual judgements. The current situation in Russia can be characterized by high rates of socio-cultural dynamics that entail changes in the forms of family; the intervention of jurisprudence in the established systems of origin of children, Russia’s leading position in the world by the number of divorces. In this context, the legal problems of parenthood are gaining new points of academic interest, going beyond the known formulations of parental rights and responsibilities. Purpose: using interdisciplinary knowledge from sociology, anthropology, and psychology, to substantiate theoretical and methodological guidelines significant for the creation of the theory of parenthood in law; to investigate the concept of de facto parenthood as a type that is not based on biological and legal prerequisites; to clarify the relationship of the terms kinship, origin, parenthood, bringing up, used to describe this subject area; to formulate theoretical arguments in favor of referring de facto parenthood to social parenthood. Methods: the method of comparative law study; the inductive method; the method of analysis; the method of legal dogmatics; the phenomenological method; the general scientific method of dialectics. Results: the Russian legislator’s attitude to the phenomenon behind the legal concept of ‘de facto raising of a child’ is hopelessly outdated. The strong trace of socialist ideology does not allow one to see the fact that the theory of de facto parenthood carries a much greater social and legal resource than is traditionally assumed. With its subsequent development, it may well be involved in scientific discourse as an adaptive one, making it possible to offer the legislator some tools for introduction of the facts of social parenthood into the legal space. Conclusions: following the ideal of a small nuclear family as a fundamental normative image enshrined in the legislations of the absolute majority of countries, does not exclude a selective normative response to cases of de facto parenthood claiming to be social parenthood. The analysis of the legislations of different countries have identified three types of legislative strategies in the regulation of such parenthood: radical (USA), liberal-conservative (England), conservative (Western European countries). The concepts of de facto parenthood that exist in different countries are neither uniform nor unambiguous. Russian jurisprudence is not yet ready to take into account new social and medical events that act as catalysts for the creation of a full-scale theory of parenthood in law. One of the conditions for its creation is the acceptance of parenthood in law not only as the threshold phenomenon beyond which parental rights and obligations arise but also as a dynamic phenomenon undergoing diverse modifications concerning the existence of a family and raising children.