Both my wife, our child, and I reside in the US.
My wife and child are Russian citizens, registered in St. Petersburg.
They have resided in the US now for almost 1 year.
I filed for divorce in St. Petersburg in March of this year.
She recently decided to include the child custody in the Russian divorce
and also file for divorce here in WI USA.
So now the divorce in St. Petersburg has went to the district court because of
the custody issue.
Does Russia have jurisdiction over my daughter who has both US and Russian passports?
It seems to me because my daughter resides in the US for more than 6 months, that the Russian court will not have jurisdiction over her. Is this correct?
Can we separate these issues and conclude the divorce in St. Petersburg?
Also, because I filed first, do you know if the divorce proceedings in
the US can be continued with the pending Russian divorce?
My goal is to complete the divorce in St. Petersburg as soon as possible.
You right that according to Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) the matter of children custody should be decided by the state or territory where the children reside within last 6 months. As I know American courts always apply such Act with regard to jurisdiction determination.
But Russian Federation is not a part of such Act and in Russian law there is no rule which prohibits Russian court to consider cases regarding custody when children temporary reside in Russia or even do not reside in Russia at all. In determination of jurisdiction court considers the place of registration of the child (propiska) and his citizenship. Thus the court was formally correct when it took the case for hearing in addition to divorce suit – the request regarding custody determination.
According to Article 24 of Family Code of Russia, during divorce in court spouses can present to court’s consideration an agreement where the minor children will reside and also about payment of money for children support and/or for non-working needed spouse, about the amount of these payments and also about division of spousal property. In case where there is no agreement between spouses regarding above questions, the court by request of any of the parents may determine with whom of the parents the minor children will reside after divorce, determine from whom of the parents the money for support of the children will be withheld and in what amount, do property division in their spousal property and decide the matter of payment money for nin-working needed spouse.
In practice judges do not consider all the matter at the same time because in this case divorce can take long time which would neglects the spousal rights and denying them to get freedom and create a new family. Because of that more often the judge makes a decision of divorce within about 3 months and all the remaining questions are decides in separate court proceedings.
This is in according to requirement of Article 151 Part 2 of Civil Procedure Code of Russia where it says that judge divides one or several joined lawsuit requirements into separate proceedings if he accepts that the separate consideration of those is reasonable.
In my professional opinion, in your case the division of the lawsuit requirements would be reasonable and at the first time I would be file a request according to Article 151 of Civil Procedure Code about division of the matter of child residence into a separate proceedings. This should be file in writing. I can prepare papers about if you want. If judge agrees with such request and grants this, in this case the judge will have to make divorce decision. And under such circumstances the case in America will be discontinued in its part regarding divorce because you will be divorced.
In the contrary, if in two different courts there are two different cases in the active state about divorce, in the first time it will be a according to their order. Russia in such case has an unconditional duty to consider the case on merit because the case in Russia was brought earlier. The Article 222 Civil Procedure Code determines that court remains the request without consideration if in the process of this or different court or arbitration court there is an active case between the same parties about the same subject and the same matter.
As I know the American courts also apply the same principle of order in those cases where is no dispute about jurisdiction and American court agrees that Russia has the jurisdiction. But if both parties in fact live in the USA, their child lives in America, their property is in America and so on, based on such circumstances the American judge can consider that only American court have proper jurisdiction for the suit and if in your case the judge in America decides such, the principal of order would not have matter.
Because of that the best resolution of your case would be to request in Russian court the division of joined matters, to and get a divorce decision, when bring to American court the legalized court’s decision about divorce and ask the American court to discontinue divorce case because the divorce already happened, and ask court to consider custody matter only.
I often face such situation and if needed, I will be able to prepare the expert opinion for court in U.S. and also prepare for you all documents in Russia and/or represent your interests in Russian court.
I would be glad to help you.