Extract from an appeal under the child custody case

The court has considered a civil case over determining the child custody. The mother filed custody action, and the father filed the counterclaim. The court made the custody order in favor of the father based solely on the fact that the mother temporarily took the child outside of the Russian Federation to the United States without the father’s consent.

When considering this case, the court of first instance has committed a number of violations which, based on Art. 330 of the Russian Civil Procedural Code, is causing the reversal of the judgment made.

I. NON-COMPLIANCE WITH A COURT RULING BY THE CHILD PROTECTIVE SERVICE

CPS failed to fulfill the task assigned to it, namely “to provide an inspection report in respect of living conditions of a child at the defendant’s place of residence. CPS visited a different address than the one specified by the court and inspected a different apartment which, although owned by the defendant, is not his residence. In fact, the plaintiff is permanently registered and residing in this apartment.

The mother’s place of residence inspected by CPS represents character evidence of the mother. It proves that the apartment in which she lives is in good sanitary condition, and is renovated, furnished, and equipped with household appliances. There is a playroom with the child’s personal belongings, books, and toys there.

The fact that the apartment located at this address is the mother’s residence was confirmed at the court session and was not disputed by the defendant.

II. THE FATHER DID NOT MAKE A TRAVEL BAN. THE CHILD’S TRAVELING WAS IMPLEMENTED IN STRICT ACCORDANCE WITH ART. 20 OF THE RUSSIAN LAW “ON THE PROCEDURE FOR EXIT FROM AND ENTRY INTO THE RUSSIAN FEDERATION”

According to case files, as of the day of the final hearing, the minor child has been outside the Russian Federation (in the United States) with the mother. This is absolutely legal. According to Art. 21 of the Russian Law “On the procedure for exit from and entry into the Russian Federation”, disagreement with the child’s departure from the Russian Federation is declarative. The defendant had not filed an appropriate statement against the child’s traveling by the time of crossing the border.

Therefore, no violation was committed. When the child was in the United States, the formal agreement between the parents on the child’s custody and visitations remained in effect: the minor lived with the mother and communicated with the father using Skype.

III. PARENTS’ PERSONALITY

The same circumstances regarding the plaintiff and the defendant were construed by the court differently. The equality of the parties (Art. 12, 38, Part 3 of the RF Civil Procedural Code, Art. 123, Part 3 of the RF Constitution) implies equal opportunities to furnish evidence under conditions that do not put one party at a significant disadvantage compared to the other party.

• both parties were recently remarried;
• both step-parents willing to be involved in the child’s life;
• both parties have University degrees;
• both parties have a persistently high income;
• neither party has problems with drugs;
• neither party has psychiatric problems;
• neither party was prosecuted;
• neither have chronic diseases or serious health complications.

Furthermore, there is a fact speaking in favor of the mother that the parents have actually decided on the custody and visitation issues during the divorce in 2016. According to mutual consent, the mother has custody, and the father has visitation rights. As was established by the court of first instance, the mother faithfully performed her duties while residing in the Russian territory.

According to Principle 6 of the Declaration of the Rights of the Child was adopted by all 78 Member States of the United Nations General Assembly in Resolution 1386 (XIV) dated November 20, 1959, a child of tender years shall not save in exceptional circumstances, be separated from his mother. According to Art. 38 of the RF Constitution, motherhood is under state protection.

The witnesses interrogated at the court session confirmed that the mother is an excellent parent. They testified that the plaintiff’s apartment is appropriately renovated; there are children’s books, educational aids, and toys there. When they visited the plaintiff, they saw that the child was well-groomed, nourished, and developed; the mother devoted a lot of time to her child. She took her child to educational courses, theaters, and children’s parties.

At the same time, witnesses interrogated in court testified that the father expressed a negative attitude towards the early development of the child. He was not involved in his child at all when the parties lived as a couple. After the divorce, he had visitations with the child under mutual consent with the mother.

IV. NO EXCEPTIONAL CIRCUMSTANCES PERMIT REMOVING A CHILD FROM THE MOTHER

According to Principle 6 of the Declaration of the Rights of the Child was adopted by all 78 Member States of the United Nations General Assembly in Resolution 1386 (XIV) dated November 20, 1959, a child of tender years shall not save in exceptional circumstances, be separated from his mother. No such exceptional circumstances as applied to Principle 6 of the Declaration of the Rights of the Child have been provided by the court.

Our legal position fully corresponds to the opinion of the Supreme Court. In particular, the ruling of the Judicial Chamber for Civil Cases of the Supreme Court of the Russian Federation No. 18-KG17-181 dated December 19, 2017, canceled judicial acts on the satisfaction of claims on determining the place of residence of a child/children due to the non-investigated option of his/her separation from his/her mother without impairing their physical and moral development. However, the court did not consider commissioning any psychological and pedagogical expertise typical for this category of cases.

V. RELEVANCE AND ADMISSIBILITY OF EVIDENCE

Conspicuous is the fact that, at the request of the defendant, documents that did not meet the requirements of the law and could not be recognized as evidence in accordance with the provisions of the civil procedural law and the international agreement – the Hague Convention dated on October 5, 1961 – was erroneously entered into case files.

The documents issued, compiled, or certified in accordance with foreign law in the established form by competent authorities of foreign countries outside the Russian Federation shall be accepted by courts of the Russian Federation subject to their legalization (Art. 408 of the RF Civil Procedural Code). Consequently, foreign documents shall be apostilled in accordance with the Hague Convention of 1961.

Written evidence shall be presented in the original or in the form of a duly certified copy. A document received in a foreign state shall be recognized as written evidence in court unless its authenticity was disproved and it was not duly legalized (Art. 71 of the RF Civil Procedural Code). Moreover, almost all the documents submitted by the defendant were obtained beyond the court procedure which, in accordance with Art. 55 Part 2 of the RF Civil Procedure Code has no legal force and can under no circumstances be taken as the basis for a court judgment.

In accordance with Art. 67 of the RF Civil Procedure Code, the court shall evaluate the relevance, admissibility, and validity of each piece of evidence separately, as well as the adequacy and interconnection of the evidence in aggregate. The facts of the case which, in accordance with the law, shall be acknowledged by certain sources of evidence cannot be acknowledged by any other evidence (Art. 60 of the RF Civil Procedural Code).

In particular, the private detective’s report does not meet the requirements of the RF Civil Procedural Code and is not admissible evidence. The detective was not interviewed in court according to the rules of witness interrogation (Art. 69-70 of the RF Civil Procedural Code), and his report does not meet the requirements for written evidence (Art. 71 of the RF Civil Procedural Code).

Art. 55 of the RF Civil Procedural Code provides for an exhaustive list of sources of evidence and establishes that evidence obtained in violation of the law shall not have legal force and cannot form the basis for a court judgment. As was explained by the highest court of the Russian Federation to lower courts in the Review of the RF Supreme Court dated August 13, 2019, “the court’s right to evaluate evidence based on its internal conviction shall not imply the possibility for the court to assess evidence arbitrarily or contrary to law.”

Such errors are not uncommon in judicial practice. The Judicial Chamber on Civil Cases of the RF Supreme Court, while discharging the judgment of the Vologda City Court of the Vologda Region dated October 10, 2012, and the appeal ruling of the Judicial Chamber on Civil Cases of the Vologda Regional Court dated December 19, 2012, stated that “the court formally announced these documents attached to the case among the other written documents in evidence without giving any conclusions regarding them in the text of the court judgment.

The court of first instance did not examine the disputed evidence at the court session and, in violation of the provisions of Art. 67 of the RF Civil Procedural Code, failed to assess them according to the rules of a court of first instance” (see Ruling of the Judicial Chamber on Civil Cases of the RF Supreme Court No. 2-KG13-3 dated October 1, 2013).

Due to the above circumstances, the custody order shall be subject to reversal.