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CERTIFICATION OF KARINA DUVALL ABOUT CUSTODY ISSUES

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 XXXXXXXXXXXXXX addressed to me on October 6, 2014, and she informed me that US Citizenship and Immigration Services required from her daughter, the evidence of her mother’s legal custody over her by divorce.

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 is not used in relationship between parents and children. The Family Code includes the conception of the place of residence of the child: the child can live with the mother or with the father. The parent residing without the child has the right to communicate with the child and to participate in his/her upbringing.

7. In accordance with Art. 65 Part 3 of the Family Code, the place of residence of children when parents live apart, is determined by agreement between the parents. Parties, at their discretion, come to the oral or written agreement on this issue, or settle the dispute in court. If there are no disputes about the place of residence of the child, the child resides with the mother. If the father does not participate in upbringing of the child, this agreement allows the court to pass a resolution for collecting Child Support from the father. De facto the judicial decision by court of collecting Child Support means that the parent, who the child resides with, can decide on any aspect of the child’s life. By analogy with the American Law it means Legal Custody.

8. The marriage between parents was terminated on November 20th, 2000 by judicial decision of Mytischinsky District Court of the Moscow Region (Exhibit 2).

9. Divorce is supposed to be granted by the court if the judge finds the further marital life of the spouses and the salvation of the family impossible (Art. Art. 21, 22 of the Family Code of the Russian Federation). Impossibility of marital life is the only and sufficient condition for the judge to decide on divorce. In contrast to American Family Law, the Russian court is not obliged to decide on other issues related to divorce, such as defining the place of residence of the children, child support, spousal support, division of property, etc. In accordance with the Family Law of the Russian Federation, these issues are to be settled separately: before, during, or after the divorce procedure.

10. During the divorce procedure the judge did not define the place of residence of daughter, because of the absence of dispute. The father did not object to the mother’s custody over the daughter. According to the Court Order, he paid the Child Support (Exhibit 3).

11. According to Art. 109 of the Family Code of the Russian Federation, the employer is obliged to withdraw the monthly Child Support from the debtor's wages and transfer it to the bank account of the person who the child depends on. The presented document (Exhibit 3) implies that the child is living and will live with the mother until she is 18 years old and attains her majority. So, the mother is the Custodian Parent.

12. Elena XXXXXXXXXXXX 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 the 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 permission of the father or any guardianship authorities. De facto it means that she has Legal Custody over her daughter.

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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