I received legal opinion concerning “Motion of kidnapping addressed to the court of Hague” by my colleague, Russian Family Attorney. I do not agree with this professional opinion.
In support of its position the Attorney attaches extracts from the legislation that, according to my professionally opinion, are not related to the pending dispute and may be used under no circumstances.
For accurate application of the substantive law rules it should be realized that the notion of custody in Russian and English has fundamentally different meaning. In the Russian language and in the Russian law custody and guardianship are introduced in relation to infants and minor children left without care of parents.
In accordance with Article 31, part 3, of the Civil Code of the Russian Federation, custody and trusteeship over minors are introduced if they do not have parents, adoptive parents, if their parents were deprived of their parental rights by the court, and if such citizens are left without parental care due to other reasons, in particular, when parents avoid parenting or protecting their rights and interests.
Accordingly, the law of the Russian Federation “On guardianship and custody” is interpreted by Attorney at Law incorrectly. In accordance with Article 1 of the above law, the above law DOES NOT cover relations of parents and their children. This federal law regulates relations emerging in view of establishment, execution and termination of guardianship and custody over minors left without parental care.
Main target of state regulation of guardianship and custody is to secure timely discovery of persons (children left without parental care) that need establishment of custody or guardianship over them, accommodation; protection of their lawful rights and interests, guarantee of execution by guardians of their vested powers.
Reference to Article 148.1 of the Family Code of the Russian Federation is also incorrect. In accordance with part 1, Article 148.1 of the Family Code of the Russian Federation, rights and obligations of a guardian or foster parents of a child emerge by virtue of the Federal Law “On guardianship and custody”. As was mentioned above, this law is intended to ensure care and protection of children left without parental care, i.e. this provision of the law is also not related to these legal relations.
Parents are legal representatives of a minor child and they do not need special powers or permits given by tutorship and guardianship authorities or by any other governmental or non-governmental bodies (Article 52 of the Civil Procedure Code of the Russian Federation, Articles 26, 28 of the Civil Code of the Russian Federation, Chapter 12 of the Family Code of the Russian Federation).
In accordance with Article 65, part 3, of the Family Code of the Russian Federation, place of residence of children, if their parents live apart, shall be established by an agreement concluded between the parents. Such an agreement was reached during the divorce, with consent of the child’s father, it was decided that the child would live with its mother. Subject to an agreement between the parents, the child lives with its mother, and the father has the right to see his child and participate in its education.
Mother acted precisely within the frame of the signed agreement and strictly in accordance with the Law in making a decision about change of place of residence of her child. There are no and may not be any signs of kidnapping in her actions, she took the child to the place of her residence, because if a mother changes place of her residence, the child shall follow her. Nothing to the contrary is set forth in the international legal acts, laws of the Russian Federation and agreement signed between the parties.
As for the rights of the father, who lives separately, Article 66 of the Family Code of the Russian Federation bears a direct relation to this situation, this Article directly determines the procedure for execution of parental rights by the parent that lives apart of its child. The child’s father shall have the right to see his child, participate in its education, make a decision re: obtaining a degree by his child. A parent that lives separately from its child shall have the right to get the information about its child from the educational establishments, medical institutions, social care institutions and similar institutions. Default in providing the information may be contested in court.
The father shall have the right to participate in education of his child and has a real possibility to exercise this right. According to my professional opinion, the fact that he took legal action gives evidence that he wishes to constrain inherent personal rights of a human being – freedom of movement and free choice of residence by mother, tries to adversely modify rights and lawful interests of an child.
Main concern of parents shall be guarantee of interests of their children. Parents that exercise parental rights in prejudice of rights and interests of their children shall bear responsibility in a manner required by law (Article 65, part 1 of the Family Code of the Russian Federation). And abuse of parental rights may be the basis for deprivation of parental rights (Article 68 of the Family Code of the Russian Federation).
In fact, in accordance with Article 52 of the Law of the Russian Federation “On education”, parents of children, before the latter receive basic education, shall have the right to chose forms of their education, educational institutions, protect lawful rights and interests of their children. Defendant, being a lawful representative of child, organizes getting of education by her child in accordance with the requirements of the law. In its turn, the child’s father has the right and the opportunity, in accordance with Article 66, part 4, of the Family Code of the Russian Federation, to receive information about his child from educational institutions, including school, where his child studies.
Thus, I may make a conclusion that the law of the Russian Federation was not violated during change of place of residence of the mother and her child.