I, KARINA DUVALL, being duly sworn, depose and say:
1. I am the attorney licensed to practice law in the Russian Federation. I have been 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. Copies of my licenses and resume are annexed to this Affidavit.
2. This Affidavit is provided at the request of Mother [name of mother hidden] who filed the Petition to prevent the Respondent from traveling to Russia with the parties’ child, [name of child hidden], until such time as she is able to ensure that the Child will be returned to the United States with or without the father’s consent under the Russian Federation Law.
3. Exhibit X to this Affidavit is a copy of the Resolution Order signed by the Russian Court. The Resolution Order removes the travel ban relating to the parties’ son.
4. The Resolution Order also explains that any parent may impose a travel ban against the child’s travel outside of Russia with anyone. An old ban can be removed and a new ban can be imposed at any point in time. The Russian Government Decree “Regulations for Filing Application for Disagreement with Leaving the Russian Federation by Underage Citizen of the Russian Federation” N 273 from from May 12, 2003 as Amended by the Russian Government Decree N 220 from March 28, 2008, provides for the procedure for a parent to impose a ban on his or her child’s travel outside of Russia at any point in time.
5. The Resolution Order specifically cites Article 21 of the Federal Act ‘On the Procedure for Departure From the Russian Federation and Admission Into the Russian Federation’ № 114-FZ dated by August 15, 1996, which also explains that each parent has a right to impose a travel ban on his or her child at any time.
6. There is no treaty between the Russian Federation and the United States and there is no reciprocity in matters concerning return of abducted children from one country to the other. According to the letter from U.S. Department of State, Office of Children’s Issues dated on January 25, 2017, ‘Russia is not partnered with the United States under the Hague Abduction Convention. Thus, the Hague Abduction Convention is not available mechanism to facilitate [names of children hidden] return’. The Russian judicial practice shows that a Russian child will not be ordered to be returned to the United States by a Russian court. For example, the Russian Federation Supreme Court Judge T.N. Nazarenko in the Decision signed on April 5, 2018, stated that the Hague Abduction Convention ‘is not applicable because the United States have not recognized Russia as having joined the Convention’. Therefore, the Russian Supreme Court denies access to justice under Hague Abduction Convention to US nationals and residents on the Russian territory. The situation between the countries has recently worsened and this makes it even less likely that Russia would allow child to leave the country unless all i-s are dotted and all t-s are crossed.
7. It is possible, however, to ensure the child’s safe return from Russia to the United States without parental consent, provided that the parent who is concerned with the child’s ability to leave Russia obtains an order from the Russian court specifically allowing the child to travel with this parent from Russia to other countries.
8. According to the Regulations, Paragraph 5, of the “Filing Application for Disagreement with Leaving the Russian Federation by Under-age Citizen of the Russian Federation”, the Russian court may issue an order allowing the mother to travel with child internationally. Therefore, if the mother obtains an order from a Russian court of competent jurisdiction, specifically allowing her to travel with child, the father would no longer be able to impose a travel ban or otherwise prevent child from leaving Russia for the United States with the mother.
9. Based on my review of the file, the father requested to impose a travel ban on child’s travel outside Russia in November of 2016. The father asked to remove the ban, pursuant to the stipulation signed by the parties and so-ordered by this Court. The Russian Court removed the ban in its Resolution Order. However, the Resolution Order does not have the provision contemplated by the Russian Government Decree N 273 in Paragraph 5, specifically allowing the child to travel outside of Russia regardless of the father’s position.
10. I recommend that the mother modify the Resolution Order to include the necessary language under Paragraph 5 of Russian Government Decree N 273, to ensure the child’s timely return to the United States regardless of the father’s position.
11. Based on my experience with Russian court system, I can estimate that the process in Russian court to modify the Resolution Order to include the required language should not take more than 6 months, provided that the father cooperates in the process.