Karina Duvall, Russian matrimonial attorney, is resolving visitation issues for her U.S. client in Appellate Division of Moscow City Court

District Court of Moscow considered claim of US citizen [we will call him as Father or Plaintiff, his name keeps in secret] against Russian citizen [we will call her as Mother or Defendant, her name keeps in secret] for determining visitations with their 10 years old daughter [we will call her as Daughter, her name keeps in secret].

The claim was partially satisfied.

The Plaintiff does not agree with the court’s decision primarily because the judicial act is based on the deliberately illegal expertise.

The Supreme Court of the Russian Federation in its Review dated December 14, 2011 indicated the critical importance of expertise within civil proceeding.

According to Law 73-FZ dated May 31, 2001 "On state forensic examination in the Russian Federation" state forensic examination is carried out in the process of legal proceedings,

Since the rules established by the Code of Civil Procedure of the Russian Federation are mandatory for the experts, the rule on the mandatory participation of foreign language interpreter when conducting corresponding examinations is mandatory.

This stems from the systemic connection of the following laws:

1) The dispositions of Art. 26, 62, part 3 of the Constitution of the Russian Federation, which guarantee to the foreign citizens of the Russian Federation the right to use their native language, and the equality of their rights and rights of the citizens of the Russian Federation is declared;

2) Art. 31 of the Law of the Russian Federation “On state forensic examination in the Russian Federation”, which provides guarantees of the rights and legitimate interests of persons in respect of whom a forensic examination is carried out. When conducting a forensic examination in relation to living persons, it is expressly prohibited to restrict the rights of the subject. The specified norm guarantees to the subject the right to provide the expert with explanations related to the subject matter of this forensic examination.

3) Civil Procedure Legislation: Art. 10 of part 5, 18, 20 of part 2, 97, 113 of part 1 and 2, 150 of part 1 cl. 8, 162, 164 of part 1, 168, 229 of part 2 clauses 5 and 6 determine a foreign language interpreter as an independent subject of civil proceedings.

Understanding the importance of the participation of foreign language interpreter when conducting the court ordered psychological and pedagogical expertise, in accordance with Article 79, part 1 and 2 of the Code of Civil Procedure of the Russian Federation, the Plaintiff proposed to the court an expert institution having experience in conducting examinations with the participation of foreign citizens. The Moscow Institute for Independent Expertise and Assessment indicates in the letter dated on April 16, 2019 that “the presence of English interpreter is indispensable for any expertise with the participation of foreign citizens”.

However, the court did not take into account the Plaintiff’s opinion on the choice of an expert institution and ordered the examination to the ANO Institute of Forensic Psychological Expertise, where none of the experts speaks English, and the English interpreter was not involved in the manner prescribed by law. That is, at the beginning of expertise a certain woman was present: without a name, surname, and diploma confirming knowledge of the English. This woman gave up and left the examination before it ended. Her identity has never been established.

After the nameless translator left, the conversation with the English-speaking Father was continued by a Russian-speaking expert, thereby blatantly violating the requirements of Art. 85 of the Code of Civil Procedure of the Russian Federation, which obliges the expert to send to the court that ordered the expertise, a motivated recuse to conduct an expertise due to the incompetence of experts.

Due to the presence of such doubts, the Plaintiff's representative at the hearing on November18, 2019 filed a petition for a re-examination.

The presence of an insuperable language barrier between the expert and the examinee is also confirmed by the conclusion itself, which states that “the questionnaires used to study parenting styles are not practical in the case of the Father, since they are adapted for the Russian-speaking examinee”.

The results of the MMPI test are doubtful. It is noteworthy that the MMPI test was developed by the University of Minnesota, and later translated into Russian and adapted for Russia. The results obtained by experts when testing an American citizen with an American psychological test adapted for Russia are puzzling. It is worth noting that in 1998, receiving admission to work in his country, the Plaintiff successfully passed the MMPI test with the opposite result.

In general, given Plaintiff’s current occupation, which is a school teacher, to whom thousands of parents entrust their children every year, an expert opinion recommending limiting Plaintiff’s communication with his own daughter seems unreliable.

It is noteworthy that the Defendant is a first-magnitude figure in the field of psychology in Moscow. As a senior, more experienced specialist in comparison with young and less experienced experts, she enjoys undoubted authority.

The listed circumstances in their entirety forced the Plaintiff's representatives to appeal to the court with a request for a re-expertise.

In violation of Articles 80 and 224 of the Code of Civil Procedure of the Russian Federation, a ruling on such an important issue was considered by the court on the bench, without studying or even reading a written petition, and without moving to the deliberation room.

And finally, I would like to emphasize that the Plaintiff is an excellent father for his daughter. His requirements concerning the procedure of communication with the child are very reasonable; he would like to spend time with his daughter throughout the year, take a rest together during the holidays, and also communicate via Skype.

The court significantly scaled down the Plaintiff’s demands, deprived him of the possibility of joint trips with his daughter on vacation, spending the nights in her father’s apartment, and even Skype communication which is standard for this category of cases. The court did not provide the reasons for such restrictions.

Under such circumstances, the decision of the District Court of Moscow dated November 18, 2019 supposed to be vacated.

Best regards,

Karina Duvall

Attorney for the Plaintiff