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Family Law: termination of parental rights, rights of the child, child support. (Russia)

Question

Dear Karina,

I have seen your website and the interesting and professional answers you provide and I would like to have your legal advice before starting any legal process, in which case I will be happy to use your services.

I am American citizen married with a Russian girl in 2009. We have been living in Russia until 2011 when we move to United States with our little daughter.

During the previous Christmas we went to Saint Petersburg for a 2 weeks holidays and when I was there my wife told she will never come back to United States and that she will keep my daughter with her. I went back to United States and I have already started the divorce process with a lawyer.

She recently filed divorce in Russia.

From what i have seen in your website (answers) and what another lawyer told me already, I am aware that what she is doing is legal in Russia.

My question is: How the process works in Russia for my wife sending her demand to me? Should I have to have a lawyer in Russia?

If I disagree with what she demands (I will ask for the custody for myself) should I have to go to Russia to declare on the tribunal?

I have sent the official request via the Ministry of Foreign affairs, and they answered me by the Central Russian Authority. They offer me to reach agreement with my wife about child.

i have also seen that Russian Law does not care about which demand was first or if there is "opposite" demand coming from another country.

If my demand comes to her before she start the process, does this changes anything for me / for her?

Answer

In accordance with Art. 222 of the Civil Procedural Code of the Russian Federation, the court leave the case without consideration in the case when another court has previously opened proceedings between the same parties on the same subject and on the same grounds.

You started divorce in United States earlier than your wife did it in Russia. So your situation is to come under Art. 222 of the Civil Procedural Code of the Russian Federation. Nevertheless, Russia has both positive and negative practices. On the one hand, art. 222 of the Civil Procedural Code of the Russian Federation does not contain any indication that a court must necessarily be in Russia or in a country with which Russia has signed an agreement on legal assistance, it can be any competent court. On the other hand, some judges believe that without agreement on legal assistance, Art. 222 of the Civil Procedural Code of the Russian Federation shall not be taken into account.

In accordance with Art. 406 Part 2 of the Civil Procedural Code of the Russian Federation, the court in the Russian Federation leave the case without consideration in the case when another court has previously opened proceedings between the same parties on the same subject and on the same grounds.

Many judges denied this type of motions, because in accordance with Art. 409 of the Civil Procedural Code of the Russian Federation, foreign judgments are recognized and enforced in the Russian Federation, if it is stipulated by an international agreement of the Russian Federation.

To file the motion to the court under Art. 222 of the Civil Procedural Code of the Russian Federation, we need to provide to judge official document from United States, confirming the opening of proceedings before your wife. In accordance with Art. 408 of the Civil Procedural Code of the Russian Federation, the documents issued in accordance with the foreign law by the competent authorities of foreign countries, are accepted by the courts in the Russian Federation in the presence of legalization (in your case, you need an apostille). Documents in a foreign language must be submitted to the courts in the Russian Federation with Russian translations.

If, notwithstanding the foregoing, the judge will deny this motion, the court will continue its consideration of the merits. You have next following options:

1) To submit a request for reconciliation. You can save 3 months by this way;

2) To file a counterclaim about custody and visitations issues. In this case the judge has to transfer the case to district court.

You want to return your child to United States. As you know, your rights are protected by the Hague Convention "On the Civil Aspects of International Child Abduction" (hereinafter - the Convention of 1980), which was adopted by October 25, 1980.

In accordance with Art. 1 of the Convention of 1980, the objects of the Convention are:

1) To secure the prompt return of children wrongfully removed to or retained in any Contracting State;

2) To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

The removal or the retention of a child is to be considered wrongful where:

1) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

2) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children (Art. 11 of Convention).

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue (Art. 19 of Convention).

We have to open new case to return the child under Convention, and we have to file this application to the St. Petersburg City Court.

However, there are many reasons to deny your child's return to United States.

First, you do not have any custody order.
Second, the child is likely to have already adapted to Russia.
Third, Russian judges rarely agree to give Russian children abroad. I believe this is the main reason why the Department of children's rights has given you a recommendation to reach agreement with the child’s mother. We can reach this agreement during divorce proceedings.

I can take your case and demand the return of the child to United States. But, according to the judicial practice, your chances in this case will be not so high. I do not see an attempt to return your child to United States as being successful. In my professional opinion, I see, the way to obtain the best result is for you to resolve custody and visitation issues in the district court.

If you worry about school, you may contact with the school and obtain information, because this is your right by the Family Code of Russian Federation.

In any case, we need to prepare the answer for divorce papers for you. Your case is already scheduled, and if you or your attorney do not appear and do not provide answer or counter-claim, the judge will make a decision. You need to decide, what you except from this process, and let me to know.

Look forward to working with you.
Karina Duvall
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