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Custody issues in Immigration Law

1. I am writing to you to confirm that I am a licensed attorney in Russia. My registration number is 78/857. I specialize in Matrimonial, Family, and Immigration Law in the Russian Federation.

2. I am licensed by the Appellate Division, 2nd Judicial Department of the Supreme Court of the State of New York as a legal consultant from Russia pursuant to Section 53(6) of the Judiciary Law of the State of New York, as limited by Part 521 of the Rules of the Court of Appeals, and in accordance with the rules of the Court. I am often called to testify in the United States courts as an expert on Russian laws. I have provided many testimonies as a Russian Legal Expert in various foreign courts, especially, in United States (Exhibit 1).

3. Elena XXXXXXXXXXXXX addressed to me on October 6, 2014, and she informed me that US Citizenship and Immigration Services required from her the evidence of her mother’s legal custody over daughter by divorce on December 1, 2000, with respect of her daughter.

4. For accurate application of the substantive law rules it should be realized that the notion of custody in Russian and English has a totally 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.

5. 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.

6. In the Russian Law, the conception of custody does not use in relationship between parents and children. Family Code includes the conception of the place of residence of the child: the child can live with mother or with father; parent living alone has the right to communicate with the child and to participate in his upbringing.

7. In accordance with Art. 65 Part 3 of the Family Code, the place of residence of children when parents live apart, determined by agreement between the parents. Parties, at their discretion, may come to the oral or written agreement on this issue, or to settle the dispute in court. If no any disputes about the place of residence of the child, and, in fact, the child lives with mother, and father do not participate in upbringing of child, this form of agreement allows the court to collect child support from the father. Collection of child support a court de facto means that the parent, who lives with the child, can decide anything in relation to the child. By analogy with the American law it means legal custody.

8. The divorce between Elena XXXXXXXXXX and Nikolay XXXXXXXXX was granted on November 20, 2000 by judgment of Luberecky district court of Moscow region. This judgment entered into force December 1, 2000 (Exhibit 2).

9. Divorce supposed to be granted by the court if the judge found that the further marital life of the spouses and the retention of the family is not possible (Art. Art. 21, 22 of the Family Code). Impossibility of marital life is the only and sufficient condition to judge decided to divorce. In contrast to American family law, the Russian court during divorce is not obliged to decide other issues related to divorce, such as defining the place of residence of the children, child support, spousal support, division of property, and etc. In accordance with the family law of the Russian Federation, these issues can be solved separately from the divorce proceeding: it can be decided before, during, or after the divorce.

10. During the divorce proceeding the judge did not define the place of residence of the children, because no dispute about this issue. In fact the father did not mind against mother’s custody over daughter. He has paid child support according the executive document (Exhibit 3).

11. In accordance with Art. 109 of the Family Code, the employer is obliged to keep the monthly child support from the debtor's wages and transfer it to bank account of person on whose dependent child. From the presented Exhibit 3 implies that the child is living and will live with the mother by 18 years old. So, mother is custodian parent.

12. Elena XXXXXXXXXXXXXX is the legal representative of her daughter. In accordance with Art. 52 Code of Civil Procedure of the Russian Federation, Articles 26, 28 of the Civil Code of Russian Federation, Chapter 12 of the Family Code of the Russian Federation, she has all rights to make any decisions with respect to her daughter without the express permission from the father or the guardianship authorities. This means that she fact it has Legal Custody over her daugter.

Karina Duvall
Articles and consultations authored by attorney reflect the state of law as of the date of their writing. The laws change daily. Users of this site are advised to consult attorney regarding their situation.
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