During our stay in USA my husband and I gave birth to a daughter. We are all citizens of Russia. When I was pregnant our relations were damaged, and I decided not to register my husband as father of my daughter. Presently, my husband (her father) lives in Russia. I live in New York and I am going to start divorce proceedings in Russia – according to place of residence of my spouse, but I am afraid that my husband may make me bring my daughter to Russia. My husband presently does not have any documents proving existence of my daughter, but I am afraid that in the course of divorce proceedings he may send a request to the archives and may receive her birth certificate. Is it possible to somehow avoid this problem?
That is the main question: what should be done to get divorced and what should be done not to make the issue re: our daughter an obstacle during the divorce proceedings? Frankly speaking, it is hard for me to formulate the issue more precisely, because all possible scenarios of development of this case, which I can imagine, come to the same thing, i.e. that I will have to return my daughter (and, naturally travel to Russia myself), because he will request the court to guarantee his rights to see her.
In order to be able to restore himself in the register of birth your husband will have to apply to court with relevant claim: this will require separate court proceedings.
Making forecast of development of your situation, we may assume that in reply to your application for dissolution of marriage he may submit a counter claim on establishment of paternity and order of communication with his child. You may oppose against such claim, because establishment of paternity does not constitute a part of questions investigated by the court during dissolution of marriage (pursuant to Article 24, Part 2 of the Marriage and Family Codes of the Russian Federation, during consideration of case on dissolution of marriage the court should determine, in particular, with which parent the infant children will live after divorce; from which parent and in what amount alimony should be collected to support their children).
Besides, you are resident of New York and have the right to dissolve marriage pursuant to the law of New York: it will be much more difficult for him to make claims in American court, than in Russian court.
Establishment of paternity, amendment of register of birth will require mandatory individual judicial trial, which will not intercross with proceedings on dissolution of marriage. Thus, you (represented by your lawyer) will have the right to insist on dissolution of marriage without determination of issue re: children, because this question may not be solved by the court within the framework of proceedings on dissolution of marriage.
The issue of establishment of paternity or amendment of register of birth (both ways are legitimate from the point of view of the Russian law) will be difficult to solve, because your daughter was born abroad: in the country, which has its own legislation and with which Russia does not have an agreement on legal aid. It is obvious that, being actually father of your child, he will be able to prove it, but he will have to prove these circumstances not in Russian, but in American court, pursuant to the law of New York, where your daughter was born.
And only when he is stated in the birth certificate, he will gain the rights (and, consequently, obligations) of the father. You will be able to claim for collection of alimony in the due course, and he will be able to claim to ensure his ability to see his child.
It is his right to claim for delivery of child in care of the father. Prospects of such claim are doubtful. Besides, this case does not fall under jurisdiction of the Russian court, because the child does not have (and it seems that did not have) place of residence on the territory of the Russian Federation, and was born on the territory of a foreign state. In case of submission of such claim to the Russian court I would consider it appropriate to oppose against jurisdiction. Besides, as was stated above, there is no agreement on legal aid and on mutual recognition of court decisions between Russia and the United States, that is why I find it expedient and even necessary to file such claim on the territory of USA. Considering legality of your stay in USA, birth and actual living of your child during all her life on the territory of USA, American citizenship of your child, I do not think that American court will give preference to Russian father. But in any case such proceedings, if any, will be rather long: your marriage by that time will surely be terminated.
The most probable course of events, which I see:
1) dissolution of marriage;
2) restoration of your husband in birth certificate of the child;
3) claim on delivery of child in care of father, the most probable outcome of which will be determination of order of communication with the child – voluntarily or by enforcement. Your husband will have unconditional right to see his daughter, especially if he fulfils his obligations before his child – in particular, pays alimony. There are minimum chances that the court will make a decision on delivery of your child in custody of your husband. He may not claim that you return to Russia.
As a rule, if parents may come to an agreement, I make a draft agreement for them on order of execution of parental rights by parent, who lives in separation with his child. However, if parents cannot come to an agreement, they often come to an agreement in court, or the court makes schedule of meetings for them. I believe that this is maximum that your husband may achieve.