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APPELLATE DECISION

APPELLATE DECISION

Judicial board on civil cases of the Supreme Court of the Udmurt Republic, consisting of:

Presiding Judge T.V. Smirnova,

Judges I.L. Glukhova, A.A. Rogozin,

with Secretary S.S. Shibanova,

having considered in the public hearing in the city of Izhevsk on August 24, 2016 the civil case based on the claim filed by [keeps in secret] (father) to [keeps in secret] (mother) on establishing the order of communication with the child,

pursuant to the appeal filed by Karina Duvall, representative of father, against the decision of Octyabrsky District Court of the city of Izhevsk, the Udmurt Republic, dated May 10, 2016, which ruled:

"The claims stated by father to mother on establishing the order of communication with the child to be satisfied partially.

To establish for father the following order of communication with his son, [name keeps in secret] (son).

From 24 to 30 January, from 15 to 21 June, and from 29 November to 5 December of each year, in the presence of the child's mother, [name keeps in secret] on weekdays from 18:30 to 20:30, and on the weekends from 10:00 to 12:30, and from 17:30 to 20:30, with a lunch break and with the child’s day-time sleep.

On Monday - from 18:30 to 20:30.

Mother and her son shall meet with father at 18:30 near "Pushkinsky" supermarket located at the address: city of Izhevsk, ul. Pushkinskaya, 286, and then in the presence of [name keeps in secret] they shall be spending time communicating, either in the playground of "Talisman" shopping center (ul. Kholmogorova, 11), in "Mama Pizza" restaurant (ul. Kholmogorova), or on the children's outdoor playgrounds, as well as in other children's leisure areas (upon mutual agreement of the parties).

At 20:30, father will be accompanying his son and mother to the "Pushkinsky" supermarket at the address: city of Izhevsk, ul. Pushkinskaya, 286, or mother and her son shall be getting to "Pushkinsky" supermarket on their own (upon mutual agreement of the parties).

On Tuesday and Thursday, from 18:30 to 20:30, mother and her son shall meet with father at 18:30 near "Pushkinsky" supermarket located at the address: city of Izhevsk, ul. Pushkinskaya, 286, and then in the presence of mother they will attend "Razumniki" children development center, namely, sport practices in "karate" section.

As the training is over, but not later than at 20:30, father shall be accompanying his son and mother to "Pushkinsky" supermarket at the address: city of Izhevsk, ul. Pushkinskaya, 286, or mother and her son shall be getting to "Pushkinsky" supermarket on their own (upon mutual agreement of the parties).

On Wednesday and Friday from 18:30 to 20:30.

Mother and her son shall meet with father at 18:30 near "Pushkinsky" supermarket located at the address: city of Izhevsk, ul. Pushkinskaya, 286, and then, in the presence of mother, shall be spending time communicating, either in the playground of "Talisman" shopping mall (ul. Kholmogorova, 11), in "Mama Pizza" restaurant (ul. Kholmogorova), or on the children's outdoor playgrounds, as well as in other children's leisure areas.

As the time for communication is over, but not later than at 20:30, father shall be accompanying his son and mother to "Pushkinsky" supermarket at the address: city of Izhevsk, ul. Pushkinskaya, 286, or mother and her son shall be getting to the "Pushkinsky" supermarket on their own (upon mutual agreement of the parties).

On Saturday and Sunday, time of communication with the child shall be from 10:00 to 12:30 and from 17:30 to 20:00. Time from 12:30 to 17:30 is necessary for lunch and the child’s day-time sleep.

The place of the initial meeting, the order of commencement and ending of meetings, the place of communication with the child, including the weekends, shall be similar to the above, as has been established for the weekdays.

In case of the child’s illness, upon mutual agreement of the parties, time of the meetings may be postponed for no more than 20 days, subject to provision of the documentary evidence of illness which prevented the planned communication.

The remainder of the claims filed by father shall be dismissed".

Having heard the speech of the Judge, T.V. Smirnova, the explanations of Attorney for father, who supported the arguments stated in the appeal, the explanations of mother and those of her representative, E.V. Guselnikova, who opposed satisfaction of the appeal, the Judicial board

ESTABLISHED

The father (hereinafter - the plaintiff) - - has appealed to the court to the mother (hereinafter - the defendant) with the claim on establishing the order of communication with the child, indicating that he was married to the defendant, that they have a common son, who was born on January 30, 2012. Based on the decision of Octyabrsky District Court of city of Izhevsk, marriage between them was dissolved, place of residence of the son was determined as that with the defendant. He is an American citizen and resides in that country. The defendant with the child lives in Russia, city of Izhevsk. Mother prevents him from communicating with his son, and refuses to accept funds as child support. He is ready to fly to Russia to meet the child in the city of Saint Petersburg and Moscow, at the same time he is ready to pay for airfare and hotel accommodation for his ex-wife, until their son becomes 5 (five) years old, so that the mother could accompany the child in his travel. However, he would like the meetings (except for the day of arrival and the day of departure), to be held without the presence of his ex-wife. He would also like to communicate with his son on a regular basis via computer communication - Skype - and by telephone. He believes that in order to maintain emotional connection with the child they must communicate at least once a week. The defendant is unwilling to solve this issue voluntarily. He asked to establish for him the following order of communication with his son:

1. The last 2 weeks in June (14 days) of each year.

2. The last week of August (7 days) of each year.

3. The last week of January (7 days) of each year.

4. To determine that the plaintiff shall pick up his son from the mother’s place of residence at 10:00 am of the corresponding Sunday, and return the child at 10:00 am on the corresponding Saturday, also at the mother’s place of residence.

5. Determine the order of weekly communication via computer - Skype - on Saturdays from 20:00 to 21:00 local time, or at any other time determined upon prior agreement between the parents, either via Skype or video conference facilities.

6. To oblige mother to inform the plaintiff about the living conditions, health and development of the child at least once a week by e-mail, as well as to respond to his e-mail requests regarding his son.

7. To oblige mother to get the child enrolled in a foreign language school at her choice, for the purpose of profound study of the English language by the child.

8. To oblige mother to respond to the plaintiff's emails promptly in the part relating to communication with the child.

The case was considered in the absence of father, who was properly notified about the time and place of the hearing.

Attorney for father supported the stated claims.

The case was considered in the absence of mother who was properly notified about the time and place of the hearing. Earlier in court she objected against the order of communication offered by the plaintiff. She offered her own schedule of communication: 1 week from 24 to 30 January and 2 weeks from 01 to 07 June in the mother’s presence, only in city of Izhevsk, in the environment that is familiar for the child, justifying it by the fact that the child almost does not remember his father, that the plaintiff has not presented any testimonials of himself, and that the child is a US citizen, therefore, the father may take his son away at any time without her knowledge.

Attorney for the mother insisted on the order of communication with the child which was proposed by the defendant, did not recognize the requests to be imposed on mother, such as providing communication via computer - Skype - on a weekly basis, to provide communication with the child and to get the child enrolled in a foreign language school, as well as to respond to emails immediately.

Attorney for Department of custody and guardianship of Octyabrsky District Administration of the city of Izhevsk, requested to satisfy the claim partially, and to establish the order of communication with the child as follows: from 15 to 21 June of each year, from 29 November to 05 December, from 24 to 30 January of each year. Due to the child’s age and preoccupation, to determine the time of communication on weekdays from 18:30 to 20:30, on the weekends from 10:00 to 12:30 and from 17:30 to 20:00. Meetings between the child and his father shall be held in the presence of the mother as agreed upon by the parties.

The Court stated the above decision.

In his appeal father asks the Court to revise and partly change the order of communication established by the court, due to the fact that he resides in another country. He believes that communication should be long and continuous, of at least 8 hours, and the child should stay with him overnight. In this connection, he requests to extend the period of his communication with the child in the summer time up to 14 days - from June 01 to June 14, of which, starting from 3rd day, the child shall be spending time only with his father; and establish the first week of each September for communication - 7 days when the child, from Friday to Saturday, shall be staying only with his father; he agrees to communicate with the child from 24 to 30 January, with overnight stay from Friday to Saturday. He insists that the defendant shall let him to communicate with his child via the Internet twice a month. He asks to oblige the defendant to arrange a course of study of the English language for the child, which he will pay for, as well as to establish an obligation to take gifts for his son, explaining to him that it is from his Dad.

Having verified the court's decision within the arguments of the appeal (Part 1 of Art. 327.1 of Civil Procedural Code of the Russia), having heard the parties to the appellate process, the Judicial Board recognizes the court's decision to be lawful and justified, made with correct application of the rules of the substantive and procedural law, correct definition of the circumstances relevant to resolution of the above dispute, and objective assessment of the evidence submitted by the parties. However, the Judicial Board considers it necessary to change the decision with regard to establishing the time of communication in the summer time, as well as meet the plaintiff’s demands as to the terms of imposing on the defendant the responsibility to ensure the plaintiff's communication with his son via the Internet, the son to receive gifts from his Dad, and pass them to the child.

In accordance with Articles 61,63,66 of the Family Code of the Russian Federation, parents have equal rights and responsibilities with regard to education, maintenance of their minor children, while the parent living separately from children has the right to communicate with the child, to get involved in his upbringing and solving the issues of the child's education.

The parent with whom the children live shall not prevent communication between the children and the other parent, if such communication is not detrimental to physical and mental health of the child and to his moral development.

The court found that the plaintiff and the defendant are the parents of minor son, who was born on January 30, 2012. The plaintiff is a citizen of the United States of America.

The parties were married, their marriage was registered on June 19, 2010 in State of Nevada, Washoe County, town of Reno, in Chapel of St. Bella.

Based on the decision of Octyabrsky District Court of city of Izhevsk, dated June 11, 2014, the claims of mother to father on divorce and determining the child's place of residence as that with her were satisfied. Child support in the amount of 1/4 parts of all kinds of wages and other income on a monthly basis have been levied from father for maintenance of his son, starting from February 19, 2014 and up to the majority age of the child.

Based on the Appellate Decision of the Judicial Board on civil cases of the Supreme Court of the Udmurt Republic dated September 02, 2015, the decision of the Octyabrsky District Court of city of Izhevsk, dated June 11, 2014 in part of recovery of child support for maintenance of minor son was cancelled, a settlement agreement was signed by the parties, according to which father, starting from September 28, 2015, shall pay to mother a child support for his son in the amount of 250 US dollars monthly by money transfer in the name of mother via Western Union system, not later than by 28th day of the month for which the payment should be made. Monthly payment for the period from September 28, 2015 to March 28, 2016 shall be 500 US dollars, taking into account payment of the debt, and after March 28, 2016, monthly payment would be 250 US dollars up to the majority age of the child.

The court established that as of the date of consideration of the dispute father resided in the USA. Mother and the son reside in the city of Izhevsk. Minor son attends municipal budget preschool educational institution No.288. The mother, aunt and grandmother are engaged in the boy's upbringing.

The above facts have been confirmed by the case papers, and by the parties, and are not disputed.

Claims stated by father to establish the order of communication with his son are justified by the fact that he lives in another country and is unable to communicate with his son frequently, while the defendant does not take measures for proper organization of his communication with his son, does not allow to talk over the phone, does not pass his gifts to his son, the boy began to forget that he is his father, though he wants to take part in his upbringing and maintenance.

During resolution of the dispute, the Court of First Instance has taken into account the circumstances mentioned above, has taken into consideration the options for communication between the plaintiff and the defendant, and satisfied the claim in part, by setting the order for the plaintiff to communicate with his son three times a year - from 24 to 30 January, from 15 to 21 June and from 29

November to 5 December each year, in the presence of the mother, in the city of Izhevsk, having scheduled the meetings by days of the week.

Judicial Board believes that, due to all the facts investigated and established by the court in the above case, the order provided for the defendant to communicate with his son is set basically correctly and corresponds to the interests of the minor son born in 2012. Frequency of the communication is reasonable and sufficient. The Court has established the order of communication correctly, given the circumstances of the case, the boy’s age, the plaintiff's and the defendant’s requests. The court has also taken into account the father’s wishes to meet three times a year, as well as the mother's wish to maintain the communication in her presence.

At the same time, the Judicial Board considers it possible to satisfy the arguments of the appeal for granting to the plaintiff time to communicate with his son in June for two weeks at the beginning of the month - from 01 June to 14 June, keeping the order of meetings established by the court. This period does not contradict to the wishes of both the plaintiff and the defendant who has asked not to establish communication for July and August, so that she and her son would have an opportunity to go to the sea for summer holidays.

In addition, the Judicial Board considers that establishment of communication between the father and son via the internet twice a month, as well as obliging the defendant to pass the father’s gifts to the son, does not contradict to Article 66 of the Family Code of the Russian Federation , which establishes the right of a noncustodial parent to communicate with the child and to take part in their upbringing and education. The parent living with the child must not interfere with the child's communication with the other parent, if it does not affect physical and mental health of the child.

The Judicial Board considers it possible to establish the order for the plaintiff to communicate with his son via the Internet, and also believes that the child has the right to receive gifts from his father. However, the Judicial Board, based on the child’s interests, finds the defendant's argument on commencing the communication of the child with his father via the Internet after personal (direct) communication, justified. Thus, the Judicial Board is based on the fact that the child almost does not remember his father, knows him only from the photographs.

Thus, the court's decision is subject to change partially, in respect of the order of the child's communication with his father, as indicated above by the Judicial Board. In addition, to comply with the legal requirements concerning the enforceability of the decision and possibility of enforcement thereof, the Judicial Board deems it necessary to supplement the operative part of the decision with indicating on imposing upon mother the obligation to provide and not to prevent father from meeting with his son according to the order of communication established by the court.

Judicial Board believes that the established order of communication between son born in 2012 and his father is not contradicting with the child’s interests and is adequate for him keeping in touch with his father and keeping proper contact with him. Taking into account the fact that the child has never seen his father and is of minor age, and is incapable, by virtue of age, to correctly understand what is happening, the court has reasonably established the way of communication between the father of the child in the presence of his mother.

Other arguments of the appellate claim are similar to those which were the subject of investigation carried out by the Court of First Instance, and are essentially reduced to the subjective statement of facts and revaluation of evidence that has been given proper legal assessment in the judgment with which the Judicial Board agrees.

Since the family relationships are of a continuing nature, and, taking into account the new circumstances, in the absence of an agreement, the parties may in the future establish a new communication order judicially.

Being guided by Article 328 of the Code of Civil Procedure RF, the Judicial Board

RULED:

The decision of Octyabrsky District Court of the city of Izhevsk, the Udmurt Republic, dated May 10, 2016, shall be amended in part.

“To establish the order of communication for father with his son, born on January 30, 2012, as that from 01 June to 14 June each year (instead of the period from 15 June to 21 June) in the presence of the mother, on weekdays from 18:30 to 20:30, on weekends from 10:00 to 12:30, and from 17:30 to 20:30 with a lunch break and the child’s day-time sleep.

To impose the obligation on mother to provide father with the opportunity to communicate with the child via computer communication - Skype - after personal meeting of the child with his father at 1st meeting, 2 times per month (1 and 3 weeks) on Saturdays from 20:00 to 21:00, by means of web cameras and microphones.

To impose on mother an obligation to receive gifts sent by father at the place of child's residence, and pass them to the child.

To impose an obligation on mother to provide and not to prevent father against meeting with his son, in the order of communication established by the court.

The remainder of the court's decision to be upheld.

To satisfy partially the appellate claim filed by father.

Presiding Judge: T.V. Smirnova

Judges: I.L. Glukhova

A. A. Rogozin

copy is true: Judge: /signature/

Official seal: Supreme Court of the Udmurt Republic

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