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Parental international kidnapping

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The story of the case:

An Italian citizen with a legal help from Maria Yarmush started a claim against his ex wife on determining the procedure for communication with his minor child

He and his ex wife were in a registered marriage and lived in Italy with a son 5 years old.
The mother of the child on September 2017 took the child out to Russia by deceit and has been keeping the child in isolation from his father since then.

Later the marriage between them was terminated by the decision of the Russian court.

DECISION IN THE NAME OF THE RUSSIAN FEDERATION

January 24, 2019
Ramenskiy city court of the Moscow Region composed of the presiding federal judge Aladin D.A.,
with the secretary Babakova K.O.,
with the participation of the interpreter Mininberg Y.V.,
having examined in open court session the civil case No. on the claim of D.D. to N. on determining the procedure for communication with the child and not obstructing the communication with the child,

FOUND:

The claimant filed a claim against N. on determining the procedure for communication with a minor child B., date of birth 05.10.2013, and not obstructing the communication with the child.

As justification of the claim, he indicates that the parties were in a registered marriage from which they have a minor child B., date of birth 05.10.2013. The parties have resided in Italy after the registration of marriage. On September 14, 2017, the defendant took the child out to Russia by deceit and has been keeping the child in isolation from his father since then.

On 27.02.2018, the marriage between the parties was terminated by the decision of the Ramenskiy city court, it determined the place of residence of the child with the mother. Due to the fact that they cannot agree peacefully on how to communicate with the child, he is forced to go to court. Also, he asks not to obstruct his communication with the child. Provided the following procedure for communication with the child:
- by virtue of telecommunication every day in the period from 7:00 pm to 7:30 pm (Moscow time) for five minutes or more at the wish of the child;
- to obligate N. to provide her son with a working telecommunication device for communication with his father at the time indicated by the court;
- during his stay in Russia D.D. spends Tuesday, Thursday from 5:30 pm to 8:30 pm with B. with the possibility of attending cultural and entertainment events. From 6:00 pm Friday to 6:00 pm Sunday without the presence of the mother of the child, taking into account the mode of the day and the occupation of the child, having notified N. about his stay in the Russian Federation no later than three weeks before it.
- D.D. spends one summer month with his son, one week at the end of December with the right of departure from the Russian Federation by the agreement with the mother in advance.

At the court session, D.D. and his representative - the lawyer on the warrant Yarmoosh M.M. - supported claims, requested to satisfy the claim.

N. and her representative on the power of attorney Z. objected to the procedure for communication with the child presented by D.D., proposing their own communication procedure indicated in the written objections to the claim (the objections are attached to the case file).

The representative of the Department of Custodianship and Guardianship of the Ministry of Education of the Moscow Region in the Ramenskiy municipal district on the power of attorney Liman I.V. at the court session submitted a revised opinion, which suggested possible to determine the procedure for communication of the father with the child as established by them.

The court, after hearing the parties, having examined the case file, comes to the following.

The court found that on 15.06.2012 N. and Italian citizen D.D. entered into a marriage. Marriage registered by the Civil Registration Service of Caserta, Italy 15.06.2012 (the entry No.), as evidenced by an extract from the marriage certificate. From the marriage the parties have a minor child B., who was born on 05.10.2013 in Marcianise, Italy, as evidenced by an extract from the birth certificate No. The child has citizenship of the Russian Federation and Italy.

After the registration of the marriage, the parties resided in the Italian Republic, Caserta Province, San-Nicola-la-Strada, where the child received medical services and also attended a general education institution.

On 14.11.2017 N. together with her young son left for Russia and currently lives in the town of Ramenskoye, Moscow Region, with her child B.

Before leaving for the Russian Federation, the minor B. lived together with his parents in Italy in an apartment at the address: xxx, owned by D.V., born on 10.02.1948 in Cardito (province of Naples), a father of D.D. and the grandfather of the minor child.

According to the report of the architect Gulielmo Tortora, this apartment is in excellent condition and meets all the standards of comfort necessary for a minor child to live and to ensure his safe living.

By the decision of the Ramenskiy city court dated 27.02.2018 on civil case No. under the claim of N. to D.D. on the dissolution of the marriage, determination of the place of residence of the child, the marriage, registered on 15.06.2012 by the Civil Registration Service of Caserta, Italy between N. and D.D., was dissolved. The place of residence of the minor B., born on 05.10.2013, was determined with his mother N.

This decision has established:
"N. owns a share in the ownership of a two-room apartment with a total area of 49.3 sq. m, at the address: Moscow region, xxx, which is confirmed by the certificate of state registration of the title. The claimant and her minor son are registered in the indicated apartment at the place of residence, which is confirmed by the claimant's passport and certificate of registration at the place of residence of the minor child. The claimant indicates that at present she lives with the child in the house of her grandmother V. at the address: xxx. Appurtenance of V. of 2/3 shares of the house at the indicated address is confirmed by a certificate of inheritance under the will issued by the Ramenskiy state notary office on 29.01.1989, registry number xxx, as well as by the reference from the Property Inventory and Registration Authority. Relationship of the claimant and her grandmother V. confirmed by the birth certificates, marriage certificates".

By virtue of Art. 61 of the Code of Civil Procedure of the Russian Federation, these circumstances, established by a court decision that has entered into legal force in a previously reviewed case, are mandatory for the court; the specified circumstances are not proved again and are not subject to contestation at consideration of another case in which the same persons participate.

The parties cannot agree on the place, time and duration of communication with the child, in connection with which D.D. has filed this claim to court.

In accordance with art. 61 of the Family Code of the Russian Federation, parents have equal rights and bear equal responsibilities with respect to their children (parental rights).
According to art. 63 of the Family Code of the Russian Federation, parents have the right and obligation to raise their children. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children. Parents have a preferential right to raise their children before all other persons. Parents are obliged to ensure their children receive basic general education. Parents, taking into account the opinion of children, have the right to choose an educational institution and the form of education of children before children receive basic general education.

As indicated in p. 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27.05.1998 No. 10 (rev. dated 06.02.2007) "On the application of the law by courts in resolving disputes related to the upbringing of children", in accordance with p. 2 of Art. 66 of the Family Code of the Russian Federation parents have the right to conclude in writing an agreement on the procedure for exercising parental rights by a parent living apart from a child. If the parents cannot come to an agreement, the dispute that has arisen is resolved by the court at the request of the parents or one of them with the participation of the guardianship and custodianship body.

Based on the right of the parent living apart from the child to communicate with him, as well as the need to protect the rights and interests of the minor when communicating with this parent, the court, taking into account the circumstances of each particular case, should determine the order of such communication (time, place, duration of communication, etc.), setting it out in the resolutory part of the decision.

When determining the procedure for communication between the parent and the child, the age of the child, his state of health, devotion to each parent and other circumstances that can affect the childs physical and mental health and moral development are taken into account.
In exceptional cases, when a childs communication with a parent living apart may harm the child, the court, based on p. 1 of art. 65 of the Family Code of the Russian Federation, which does not allow the exercise of parental rights to the detriment of the physical and mental health of children and their moral development, has the right to refuse this parent to satisfy the claim on determining the procedure for his participation in the upbringing of a child, stating the reasons for the decision.

Similarly, the requirement to remove obstacles to parents, who are not deprived of parental rights, in the upbringing of children, staying with other persons on the basis of the law or decision, must be resolved.

In this court session D.D. confirmed that he wanted to communicate with his child B. but they had differences in determining the procedure for communication. In addition, the defendant put obstacles in communication with the child.

In accordance with art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis of its claims or objections.
Meanwhile, the arguments of D.D. that N. puts obstacles in communication with the child are not found to be evidentiary in the course of the court trial and therefore these claims are not subject to satisfaction.

Since there is a dispute between the parties about the procedure for communication of the father, who lives apart, with his children, the parties did not reach an agreement and therefore this issue is subject to resolution in court.

During the consideration of the case, the guardianship authorities carried out inspections of the living conditions of the mother and father. From the submitted act it is seen that at the place of actual residence of the mother at the address: xxx, there are all the necessary conditions for the residence of a minor child.

According to the lease contract dated 14.01.2019, the apartment provided to D.D. to stay for the period from 14.01.2019 to 14.07.2019. The contract provides for the right of prolongation of the contract by mutual agreement of the parties.
From the explanations of the claimant D.D. it follows that he will actually live at this address while he is on the territory of the Russian Federation and the minor son B. is planned to be in this apartment during the days of their communication.
From the inspection report on living conditions at the fathers location at the address: Moscow region, xxx, it can be seen that at the indicated address the living conditions correspond to the living standards of the minor child.

Among the objections to the procedure for communication with the child proposed by the claimant, the respondent referred to the fact that the communication of the child with the father without the presence of the childs mother would have a negative effect on the childs psyche, apart from that the threat of taking out and non-return of the minor child back to Russia remains.

According to the opinion of the expert of LLC "Psychological Consultations", the relationship between mother and son is characterized by stable psychological comfort, expressed emotional connection and familiarity, symbiotic affection, a strong sense of safety, trust and support. The image of the father, D.D., at the time of the examination of the child, is formed, but B. emotional devotion to his father and the degree of psychological familiarity with him are less stable than with his mother. In connection with the above, the expert came to the conclusion that the communication of the minor B. with his father without the presence of the mother of the child, as well as spending annually one summer month with the son, one week at the end of December with the right to leave the Russian Federation without her presence did not correspond to the current mental and physical needs of the child and would likely create a risk of deterioration of the mental (emotional) state, would lead to a high risk of neurotization of the child, would inevitably disrupt the childs usual lifestyle, would deprive him of usual algorithm of actions, which gave the child the opportunity to feel in the comfort zone without damage to his physical and mental state, would deprive him of the necessary organizing help of the mother.

At the same time, the court considers that the specified conclusion cannot be indisputable evidence in the case, since by virtue of Part 1 of Art. 61 of the Family Code of the Russian Federation, parents have equal rights and bear equal responsibilities in relation to their children (parental rights). In this connection, the provision of the father with the opportunity to communicate with his child in itself fully complies with the provisions of the law.
The court considers insolvent and unsubstantiated and objectively unconfirmed the arguments of the respondent that if the fathers communication with the minor child takes place without the presence of the childs mother, then the threat of taking out and non-return of the minor child back to Russia to the mother through the Republic of Belarus remains, There is no undisputed evidence to the arguments of the defendant.

Also, a revised opinion of the guardianship and custodianship body of the Ramenskiy municipal district of Moscow region on determining the procedure for communication with the child is presented in the case file, from which it follows that the parents of a minor child have the desire and ability to be engaged in the upbringing of the child. It is believed that communication of D.D. with the child will not harm the physical and mental health, his moral development but, on the contrary, will contribute to his full development. In addition, the procedure of communication of D.D. with a minor B., date of birth 05.10.2013, is provided for:
- by virtue of telecommunication every day in the period from 7:00 pm to 7:30 pm (Moscow time) for five minutes or more at the wish of the child;
- during the stay of D.D. in Russia on Tuesdays and Thursdays from 5:30 pm to 8:30 pm with the possibility of attending cultural and entertainment events without the presence of the mother of the child;
- during the stay of D.D. in Russia on Saturdays and Sundays from 10:00 am to 2:00 pm and after B.'s nap from 5:30 pm to 9:00 pm without the presence of the mother of the child;
- after reaching by the minor B., date of birth 05.10.2013, of the age of 10, D.D. spends annually one summer month with his son, one week at the end of December with the right to leave the Russian Federation by the agreement with N.

According to Part 1 of art. 66 of the Family Code of the Russian Federation a parent living apart from the child has a right for communication with the child, participation in his upbringing and decisions on matters of education of the child.

At the same time, the court proceeds from the provisions of Art. 66 of the Family Code of the Russian Federation and the fact that, in view of the evidence submitted, there is no reason to believe that communication with the father without the presence of the childs mother would harm the child.
The defendant, in violation of the requirements of Art. 56 of the Code of Civil Procedure of the Russian Federation, didn't provide the evidence in support of her objections.

The court, assessing in the aggregate the evidence presented, taking into account the fact that N. does not object in determining the procedure for communication with the child, finds claims for determining the procedure for communication with the child to be satisfied.
Since the parties propose a different procedure for communication with the child, the court considers it possible to determine the procedure for communication at the suggestion of the guardianship and custodianship body taking into account the changes, since, in this case, both the interests of the child and the rights of both parents are taken into account and it is more acceptable in the current situation.

The court also considers it necessary to note that by virtue of Part 3 of Art. 66 of the Family Code of the Russian Federation. If a court decision is not fulfilled, the measures provided for by civil procedural legislation are applied to the guilty parent. In case of malicious failure to comply with a court decision, the court, at the request of the parent living apart from the children, may propose a decision of transference the children to him based on the interests of the children and taking into account the childrens opinion.
Guided by art. 194-199 of the Code of Civil Procedure of the Russian Federation, the court

DECIDED:

The claims of D.D. - to satisfy partially.

To define the following procedure for communication of D.D. with the minor son B., date of birth 05.10.2013, on the territory of the Russian Federation without the right to leave it until the child reaches the age of ten:
- by virtue of telecommunication every day in the period from 7:00 pm to 7:30 pm (Moscow time) for five minutes or more at the wish of the child;
- during the stay of D.D. in Russia on Tuesdays and Thursdays from 5:30 pm to 8:30 pm with the possibility of attending cultural and entertainment events without the presence of the mother of the child;
- during the stay of D.D. in Russia on Saturdays and Sundays from 10:00 am to 2:00 pm and after B.'s nap from 5:30 pm to 9:00 pm without the presence of the mother of the child;
- after reaching by the minor B., date of birth 05.10.2013, of the age of 10, D.D. spends annually one summer month with his son, one week at the end of December with the right to leave the Russian Federation by the agreement with N.
In meeting the requirements of D.D. about the obligation not to obstruct communication with the minor B. - to refuse.

The decision may be appealed by the parties to the Moscow Regional Court through the Ramenskiy city court within a month.

Federal judge: signature D.A. Aladin