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International Parental Kidnapping

I, KARINA DUVALL, being duly sworn, depose and say:

1. I am an attorney practicing Russian and International Matrimonial law.

2. I have been practicing law in Russian Federation since 1999.

3. I am primarily working with the courts and immigration authorities to provide a legal expertise regarding Russian and International Matrimonial law, enforcement of Russian court orders in the United States, child custody, parental consent for immigration matter, child abduction, estate and property issues and financial investment. I handle multi-jurisdictional cases in Russia.

4. Licensed by the Appellate Division 2nd Judicial Department of the Supreme Court of the State of New York in 2009 as a Russian legal consultant pursuant to Section 53(6) of the Judiciary Law of the State of New York, limited by Part 521 of the Rules of the Court of Appeals, and in accordance with the rules of the Court.

5. I have been designated as a Foreign Legal Consultant pursuant to the Rule XI, Section 8 of the Supreme Court Rules for the State of the Bar of Ohio State, Bar # 0091983.

6. I am arranging International process service under provisions of Hague Convention from 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents on Civil or Commercial Matters, and I have done over 300 personal services in Russia.

7. I have high qualifications in Russian legislation. My practice is devoted to the International law, and complex multi-jurisdictional cases. Our law office represents parents in civil cases involving the Hague Convention on the Civil Aspects of International Child Abduction dated on October 25, 1980.

8. I regularly receive referrals because of the strong track record of success in this sensitive and challenging legal area.

9. I carefully studied all circumstances of this case.

10. In my professional opinion, the criminal complaint based on Title 18 U.S.C. § 1204 (International Parental Kidnapping), is wrongful for the following reasons:

LACK OF U.S. PASSPORT FOR U.S. CITIZEN.

1. According to the law, all U.S. citizens entering the United States are required to present a valid passport. Children are also required to present their own passport.

2. A child 1 was born abroad to U.S. citizen parents has U.S. citizenship at birth. The parents’ responsibility was contacting the nearest U.S. consulate to apply for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) to document that the child is a U.S. citizen. Department of State issues a CRBA, also called a Form FS-240, in the child’s name.

3. According to U.S. law, a CRBA is proof of U.S. citizenship and may be used to obtain a U.S. passport. By law, U.S. citizens, including dual nationals, must use a U.S. passport to enter the United States.

4. Parents of a child born abroad to a U.S. citizen or citizens should apply for a CRBA and U.S. passport for the child as soon as possible. Failure to promptly document a child who meets the statutory requirements for acquiring U.S. citizenship at birth may cause problems for eligibility for the rights and benefits of U.S. citizenship, including entry into the United States.

5. In violation of the US federal law and California court order, the father dodged from providing his written consent with supporting documents to mother for obtaining by child 1 her CRPA and US passport. So, the father left child 1 as hostage in Russia.

6. Just this circumstance alone proves that mother absolutely not guilty.

TEMPORARILY STAYING IN RUSSIA CANNOT BE CONSIDERED AS CHILD ABDUCTION.

1. The mother moved to Russia temporarily, to give birth to her daughter, child 1, far away from stress from abusive husband. The documents clearly shows her intention live in the United States, where she lived before marriage. In particular, she received New York driver license and she applied for New York medical insurance.

2. The mother always cooperated with the father, she tried to arrange visitation in person, but father did not provide a legitimate aim and he refused to come.

3. It is absolutely clear that mother had no criminal intentions. She provided Skype conferences with father, she tried to arrange the personal meeting in Poland, she asked the court to approve her request for an order appointing a Guardian Ad Litem, she asked for to enter mediation, and, finally, she came to California to settle these issues with father in person, but she was deprived of such opportunity by arrest.

RESPONDENT HAS NOT BEEN SERVED BY FINAL ORDER. PETITIONER WAS ORDERED TO OBTAIN PROPER SERVICE UPON RESPONDENT OR THE CASE SUPPOSED TO BE ADMINISTRATIVELY DISMISSED FOR FAILURE TO PROSECUTE. CASE IS NOT RIPE FOR DETERMINATION.

1. Besides, the Petitioner is fully responsible to arrange the proper service for the respondent with all necessary documents. Where service is to be effected on a respondent out of the United States, the Rules refers with the Convention on the service abroad of the judicial and extrajudicial documents in civil or commercial matters signed at The Hague on 15 November 1965. Service is ordinarily effected by (i) a personal service or (ii) service by the first class mail.

2. Both countries – Russian Federation and the United States – signed the 1965 Convention, and agreed to follow to all provisions. However, despite of the fact, that attorney for mother has been withdrawn as her attorney, Petitioner violated the law provisions and never made proper service to Respondent after this point.

3. This biggest violation of law, that calls non-service, led to a number of illegal consequences.

HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION.

1. In addition, the Hague Convention from 1980 provides that the judicial authority does not prescribe the return of the child for the following reasons: The Father had consented to in the removal or retention (Article 13, part 1, paragraph A, of the Hague Convention, 1980).

2. According to the Article 14 part 6-A of Russian Citizenship Act 2002, a child who has a foreign nationality can get Russian citizenship by applying of Russian parent with written consent of foreign parent. Both parties are required to appear to the Russian Consulate and follow the special rules, fill out application, provide Russian translation of civil documents, such as: marriage certificate, birth certificate of the child, passports of parents, and many other documents and certificates. Each document supposed to have apostille under Hague Convention from 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents.

3. According to the Article 1 of the Federal Law # 5242-1 1993, the Russian Constitution and international acts on human rights prescribes that every Russian citizen has the right of freedom of movement, choice of place of residence within the Russian Federation. The right of the citizens of the Russian Federation of freedom of movement, choice of place of residence within the Russian Federation can be prohibited only if it was prescribed by Russian law.

4. Both parents went to the Russian Consulate to obtain Russian citizenship for their daughter child 2. The father signed ALL required documents to provide his daughter Russian citizenship with all relevant rights. It was his voluntary choice. Child 2 obtained her absolute right to travel to Russia at any time, without prior father approval.

5. It is also means that father accepted Russian jurisdiction for child 2. The written consent for trip meets to requirement of the Art. 13 part 1, paragraph "A" of the Hague Convention of 1980.

6. My legal opinion meets with current court practice. In particular, the Appellate Decision of St. Petersburg district court, established the following:

“In this case the moving of child [name keeps in secret] by her mother [name keeps in secret] from Finland to the Russian Federation cannot be recognized wrongful taking into account the requirements of Article 3 of the Convention [Hague Convention of the Civil Aspects of International Child Abduction dated on October 25, 1980] and the absence of a final custody order. According to judicial board, the circumstances of moving of the child, who is a citizen of the Russian Federation, to the Russian Federation do not violate the father’s parental rights. The judicial board draws attention to the lack of a statutory prohibition to move the child, who is a citizen of the Russian Federation, to the Russian Federation”.

7. I would like to point your attention to the case of Sylvester v. Austria (Strasbourg, April 24, 2003), that stated in section 34 the following:

“The child’s abrupt removal from her main person of reference and her return to the United States would cause her irreparable harm… In these circumstances, it could not be excluded that the child, who was now more than two years old and had been living solely with her mother.., would suffer grave psychological harm in the event of a return to her father”.

FINDINGS.

1. Child 1, the younger daughter of the parties, was born in Russia and she has a Russian citizenship. She also has US citizenship, but father dodged from providing proper documents to obtain Consular Report of Birth Abroad (FS-240) and US passport.

2. The mother immediately informed father about her actions, provided him with her current address in Russia, provided him Skype Conferences with their daughters.

3. Decree of Divorce stated: “Respondent’s request for an order appointing a Guardian Ad Litem for the parties’ minor child (child 2) is denied. Should respondent return to California with said minor child, the Court may reconsider said request upon a proper motion being filed”.

4. Decree of Divorce also stated: “Respondent’s request for an Order for the parties to enter mediation is denied”.

5. In addition, the father gave to the mother written advice to come to the United States to return her custody rights (see Russian custody order).

6. The relevant motion has been filed by mother before arrest.

7. The statement that mother asked father for money for visitation is absolutely incorrect. This is an unsuccessful attempt to discredit mother, who asked father to support their children. She is responsible mother and she cares about support of her minor kids. The father never supported his kids even when Judge ordered it.

8. Therefore, it is obviously that mother many times tried to resolve these issues using legal way only.

FINAL PROVISIONS.

1. The mother did not have any intention to obstruct the lawful exercise of parental rights, and she had clear intention to live in the United States with children. She is US citizen; she updated her driver license, applied for medical insurance, and filed proper motion to the Family Court. The mother asked many times her former husband to provide proper documentation to obtain US passport for child 1, but it was unsuccessfully.

2. Therefore, the mother was deprived of opportunity to bring children to the United States because child 1 never had US passport. The father created special conditions to make impossible for mother to bring children to the USA. Conversely, he did not stop discredit the mother in front of courts and public.

3. Therefore, this case should be resolve without psychological harm for anyone. I see the main goal of this case is to allow the mother to bring kids to the United States. In this case she will be able to follow Divorce Decree:

“Respondent’s request for an order appointing a Guardian Ad Litem for the parties’ minor child (child 2) is denied. Should respondent return to California with said minor child, the Court may reconsider said request upon a proper motion being filed'

4. The father artificially created this situation by failure to provide proper documentation for US passport for his younger daughter (child 1), thus creating an insurmountable obstacle for returning of mother with kids to the United States. Additionally, the mother never was properly served by final court order.

5. I believe that these circumstances completely exclude mother’s guilt. If she would be convicted, she would not be able to resolve these problems, and all three children, including her older son, would be orphans with living parents and will suffer extreme hardship.

I hereby certify that the foregoing statements made by me in the annexed Affidavit are true. I am aware that if the foregoing statements made by me are willfully false, I am subject to punishment.

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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