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Family Law: termination of parental rights, rights of the child, child support. (Russia)
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Question

I was married with a Russian woman in the May of 2004. Because of me, she got a green card in the USA and she is a permanent resident of the USA this days. In one year our son was born. He got US citizenship by birth and my wife obtained Russian passport for him in consulate. Now our co-life isn’t good, and she wants to divorce according to the Russian laws. She convinces that the son was registered in Russia, though we permanently are living in the USA, and I don’t know how it is possible. I don’t want to divorce in Russia, to which we haven’t any concern and, especially, I don’t want that my son will live in Russia. Could she kidnap the child and secretly take it to Russia? What is the penalty of this in Russian laws? How could I prevent the legal investigation in Russia?

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Answer

In my opinion, in your case, you shouldn’t gave your consent for execute your child’s Russian citizenship. However even in case of Russian citizenship in order to register a child at the place of residency within the Russian Federation the consent of both parents is required. You should have signed personally your consent to child’s registration within the Russian Federation having applied to the passport office together with your wife, or should have your consent certified at the consulate of Russia, or by notary + apostille, or there should have been other legal grounds for your daughter’s registration – for example, court judgement. But even in this case you should have been notified of the case hearing. Therefore based on the above stated circumstances I may assume that the child had been registered in breach of effective law, and if needed you may contest it judicially within 3 years from the registration date.

Presently, since your wife and child are registered at the place of residency in the Russian Federation, you wife may apply to the Russian court, and she will not violate the law. Before the Russian court she may claim both dissolution of marriage and leaving the child under her custody. However though United States easily recognizes the court judgement on marriage dissolution, the judgement concerning the leaving the child under the custody of mother may be recognized by the United States party only on the ground of United States court ruling on recognition and enforcement of a foreign court judgement. The US court may reject to take your wife’s side.

Your wife can take the child to Russia. Unfortunately, Russia is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, and does not consider such cases as kidnapping. I have at my disposal a resolution of an investigator of prosecutor’s office approved by the prosecutor of one of Moscow districts which reads as follows, ‘In view of the fact that the husband and son of applicant are simultaneously close relatives and citizens of the USA their entry to this country does not contain any elements of crime stipulated in article 126 of the Criminal Code of the Russian Federation “Kidnapping”, and article 127 “Illegal deprivation of freedom’. That is to say that from the viewpoint of the Russian law departure of one of the parents together with the child from Russia or entry to Russia are not unlawful acts but are absolutely lawful. Therefore you may prevent their departure from United States only on the ground of US law, and I believe, you may judicially prohibit the departure of child from the country. Certainly, you will need an experiences and able American lawyer.

You have only one option of preventing the applying of your wife to the Russian court – to be in advance and apply to the US court claiming dissolution of marriage and leaving the child under your custody. The international law contains the provision according to which the court will consider the suit, which has been brought earlier. So if your wife applies to the Russian court later than you, the Russian judge on the ground of US court ruling on initiating the proceedings will unambiguously leave the suit without consideration only based on the fact that you have applied to the court earlier than your wife.

In addition, as I have already told you above in parallel with the suit brought in United States you may initiate in Russia though your lawyer a case contesting the registration of your child at the place of residence due to absence of your consent to the same.

And finally, if your wife succeeds in child’s residing in Russia, you as his father will be able to define the procedure for participation in your child’s upbringing.

I am repeating myself saying that the Russian law allows your wife to apply to the Russian court with a suit claiming dissolution of marriage in any case, and with a suit on determination of child’s residency – if the child is residing and registered in Russia. Therefore, in my opinion, you should be the first to apply to the US court, thus preventing the lawful applying of your wife to the Russian court.

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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