Yarmush's legal practice:
(Russian court order)
IN THE NAME OF THE RUSSIAN
Moscow March 13, 2015
The Presnenskiy district court of the town of Moscow, presided
by the judge, Zubova I.A., held in the presence of the secretary,
Klimanova D.D., and attended by the representative the claimant
(counter-respondent) acting by proxy dated January 20, 2015,
the lawyer, Yarmush M.M., representative of the guardianship
department of the Presnenskiy municipal district, Moscow, Karpova
A.N., acting by proxy No 28/52-ÓÔ dated January 14, 2015,
Having considered at an open court hearing a civil case on the
claim by E.W. against Larisa V. on establishing the procedure
for communicating with the child, and a counterclaim by Larisa
V. against E.W. on marriage dissolution, determining a place of
the childís domicile and establishing a procedure for communicating
with the child,
DETERMINED AS FOLLOWS:
E.W. filed a claim against L.V. on establishing the procedure
for communicating with the child, requesting the court to determine
the procedure for his communicating with his son, Alexander W.,
born on 5 August, 2007, to be held on a daily basis, within the
period from 8 p.m. to 9 p.m., either by phone or over Skype, for
15 minutes, with L.V. being obliged to provide, at the arranged
time period, the child with a switched mobile phone and Internet
connection; also, on a monthly basis, from 2 p.m. of every third
Monday to 6 p.m. of every fourth Sunday, the claimant shall gather
the child at the place of his domicile or studying so as to spend
time with the latter at the place of the claimantís residence
in the town of Moscow. L.V. shall be obliged to hand over the
child to his father at her apartment doorstep. The claimant shall
be entitled to, on the days specified herein, together with his
child visit various entertainment places or cultural events, also
being obliged to make sure that the child attends school and out-of-school
activities. Furthermore, the claimant, requests the court to oblige
L.V. to stop hampering his communication with the child; to help
resolve various issues of the childís studying and attending various
out-of-school and sports activities; to keep E.W. informed on
the childís state of health, dietary and sleep regime, as well
as various needs which may arise, as well as on the childís whereabouts,
his school and out-of-school activities locations and; not to
impose on the child a negative attitude towards his father, E.W.,
which may undermine his parental authority.
In support of his claim, E.W. informed the court that he was
married to the respondent, with whom he has a child, named Alexander,
born on 5 August 2007. He went on to claim that, due to the respondentís
abuse of parental rights, he cannot maintain an adequate communication
with the child.
L.V. addressed the court with a counterclaim against E.W. on
dissolution of their marriage, registered on November 20, 2005
in the State of Nevada of the United States of America, and on
determining the domicile for the underage child, Alexander, to
be at the place of his motherís residence, as well as establishing
the procedure for the fatherís spending time with his son to be
held in her presence every third week, from 4 p.m. on Monday to
8.30 p.m. on Friday, and on weekends - from 1 p.m. to 6 p.m.,
also, on weekdays, for 15-20 minutes, during the period of 7.30
p.m.Ė 8 p.m., either by phone or through the Internet, at the
expense of the claimant. In case if the child should have to undergo
any medical treatment either at home or in a specialized medical
center, or should the latter object to spending time with his
father, any communication with the father shall be impossible.
The claimant requests the court to oblige E.W. to provide proper
care for the well-being and development of his son, Alexander,
supporting his interests, in particular, his school studies, paining
lessons, sports activities, holidays, vocations and medical treatment;
to take interest in the childís daily needs and studies, out-of-school
and sports activities, as well as his interests, dreams and aspirations;
to encourage the child to lead a healthy way of life and have
a positive attitude towards sport, steering clear of various bad
habits, such as smoking, taking drugs, narcotic substances, spices,
and avoiding excessive consumption of different types of medicine.
Furthermore, the claimant requests the court to oblige the respondent
to help resolve different issues concerning the childís higher
education, both in Russia and abroad, while providing a relevant
guarantee for payment of such education; to prohibit E.W. from
taking son away from Russia without the consent of his mother,
L.V; not to inhibit L. V. from taking son out of Russia for a
short-term period of time either on vocations or for treatment
purposes. Finally, the claimant requests the court to prohibit
the respondent from taking the child to fast-food restaurants
In support of her claim, L.V. informed the court on the fact
that the parties had entered into a marriage on November 20, 2005
in Las-Vegas (USA), adding that, as a result of this marriage,
they have a son named Alexander, born on August 5, 2007. Since
October 28, 2012, the parties have had neither marital relations
nor common household. The claimant also asserted that any reconciliation
between the parties is ruled out.
The claimant, E.W. did not make any comments on the above claim
owing to the lack of an interpreter at the hearing. The claimantís
lawyer, Yarmush M.M., expressed full support for both the claim
and the counterclaim filed by L.V., on the dissolution of marriage
and determination of the underage childís domicile to be at the
place of his motherís residence. However, the lawyer voiced an
objection to the proposed procedure, which insists on the fatherís
spending time with his son exclusively in the motherís presence.
The respondent (counterclaimant) L.V. expressed full support
for the counterclaim, still insisting on the father meeting with
son in the motherís presence to be the only procedure she is willing
Having heard the statements of the parties, as well as the opinion
of the head of the guardianship department Karpova A.N., who believed
that the underage child should reside with his mother at the place
of her residence, and that it would be advisable that the father
should communicate with his son on weekends and during school
vocations, as well as the witnessesí opinions on the matter, and
having studies the material on the case, the court ruled as follows:
The court found that claimant E.W. is a US citizen, as specified
in his passport copy (case No 1, 9-10), while L.V. is a Russian
citizen, as provided in her passport copy (case No 1, 19).
L.V. filed a counterclaim against E.W. on dissolution of their
marriage, registered on November 20, 2005 in the State of Nevada
(USA) and determining the underage childís domicile to be at the
place of his motherís residence.
Pursuant to item 8.3 of article 402, of the RF Civil Procedure
Code, Russian courts are entitled to consider cases involving
foreign citizens provided that either the claimant in a marriage
dissolution case has a residence in Russia or one of the parties
to a marriage is a Russian citizen.
In accordance with item 1 of article 160, of the RF Family Code,
marriage involving Russian and foreign citizens or individuals
without citizenship or foreign citizens, can be dissolved on the
territory of the Russian Federation in accordance with Russian
L.V. is a citizen of the Russian Federation and has a Russian
registration; therefore the claim shall be considered in accordance
with the Russian legislation.
The marriage certificate (No D xxxx), which was duly endorsed
with an apostille in accordance with applicable law, stipulates
that E.W. and L.V. entered into a marriage on November 2005 in
Las-Vegas, Nevada (case 1, 150-152).
The birth certificate (No xxxx) suggests that the parties to
the marriage have an underage son named Alexander, born on August
5, 2007 (case 1, 8).
L.V. requests the court to dissolve the marriage with E.W. and
determine the underage sonís domicile to be at the place of his
Yarmush M.M., the lawyer representing E.W. at court, expressed
full support for the stated claim.
In accordance with article 39.2 of The RF Civil Procedure Code
the respondent is entitled to acknowledge a claim.
The court explained provisions of article 173.3 of the RF Civil
Procedure Code to the respondent on the counterclaim, stipulating
that in cases where both the respondent and the court acknowledge
a claim, the latter shall decide to satisfy the claim.
In the opinion of the court, the representative of the respondent
on the counterclaim acknowledging the claim is not against law
and does not violate the rights and lawful interests of other
parties, as provided for in article 39 of the RF Civil Procedure
Code; therefore the latter shall be accepted.
Pursuant to paragraph 2, article 198.4 of the RF Civil Procedure
Code, in case if the respondent acknowledges the claim, the court
decision shall contain the statement of the claim acknowledgement
and the court accepting the latter.
Furthermore, E.W. and L.V. request the court to establish the
procedure for communicating the child, with each party suggesting
their own vision thereof.
Pursuant to article 38.2 of the RF Constitution, both parents
bear equal responsibility for caring for and bringing up children,
being obliged to look after the childís physical and moral health
In accordance with article 65 of the RF Family Code, when exercising
their parental rights, parents must take into account their childrenís
interests. Therefore, the parents must primarily focus their concerns
on promoting the interests of their children. All issues relating
to bringing up and looking after children must be resolved by
both parents and upon mutual agreement thereof taking into account
the interests and personal opinion of the child. Parents (or any
one of them), in case of any disputes on the above issues, shall
be entitled to address the department of guardianship to resolve
any such disputes.
In accordance with article 66 of the RF Family Code, a parent
residing separately from his child shall be entitled to maintain
communication with the child, being involved in his bringing up
and education. Whereas, a parent, who resides together with a
child, must not impede another parentís communicating with a child,
unless such communication harms a childís physical or moral health
and wellbeing. In the event if parents should fail to come to
an agreement, such dispute shall be resolved in court with the
participation of a guardianship and custodianship agency upon
the parentís request (or the request from any one of them).
The residential lease agreement date February 6, 2015 suggests
that E.W. entered into a temporary and reimbursable ownership
of a residential accommodation consisting of four rooms and located
at the following address: Moscow, xxxxx, for the period from February
6, 2015 to February 3, 2016. (case 1, 22-26).
The housing inspection report dated February 18, 2015, which
was duly confirmed by the head of the guardianship department
Zhygalin V.I., suggests that the apartment being inspected consists
of 4 furnished rooms with the total floor area of 78.9 cubic meters,
with one of the rooms being at the childís disposal and containing
a wardrobe, writing desk, bed, book-shelves, PC. The report concluded
that the apartment is duly equipped and has all the conditions
necessary for an underage child dwelling. (case 1, 215)
The above conclusion was also supported by apartment photos presented
to the court. (cases 1, 31-35 and 2, 28-29).
Therefore, the court believes that that E.W. is able to provide
the child with all necessary living conditions.
The underage Alexander, who was questioned in court in the presence
of the teacher-psychologist Morozova E.A., stated that he lives
with his mother and added that sometimes his granny comes to see
him and stays overnight. Also, he said that he does his first
grade studies in a lyceum, and that the studying comes easy to
him. Both his mother and granny help the child with his homework.
Also, the child noted that he used to live in America, where he
also attended school. In his opinion, the school was good. He
recalled his father once shouting at him and making him do a lot
of writing and reading. When living in America, his parents used
to quarrel a lot, which the boy disliked. At present, he said,
father comes to see him regularly. Both the father and the son
usually spend their time together playing bowling, computer games
and having meals in MacDonaldís. Also, the child can speak English,
although, but he is not good at reading in English. However, when
his father reads him in English, the child understands everything.
The boy likes it when his father comes see him, but adds that
his mother and granny are not happy about his fatherís visits.
Once the boy stayed at his fatherís apartment, but then went home
in the evening, because he was not used to sleeping at his fatherís
The psychological report prepared by the teacher-psychologist,
Morozova E.A. based on the results of an examination of the child,
which was held from February 27 to March 3, 2015, suggests that
Alexander experiences certain psychological discomfort owing to
the present situation in the family, which is not critical though.
The boy has a positive attitude towards both his father and mother.
He displays certain emotional attachment to his mother, while
idealizing his father. The childís emotional state is stable,
being free of fear or anxiety over his parentsí relations. Consequently,
the examination did not determine any negative impact being exerted
by the parents on the child. (case 1, 224-225).
The teacher-psychologist, when questioned in court, supported
the above psychological report.
As suggested by a letter from Dr. Isidore K. of February 19,
2015, E.W. has an excellent health and has been followed up by
the doctor since July 9, 2004. Mr. E.W. does not smoke nor is
he alcohol-addict. Moreover, he does bodybuilding. (case 2, 12).
According to Mr. Kessler, the Principle of XX School, Alexander
attended the school from mid-October to mid-December. His teacher
reported that the boy was able to speak English, adding that,
although, his reading and writing skills were lower than the required
level, his mathematic abilities almost met the school requirement.
(case 2, 14)
The statement made by the police record keeper Silvia G. on February
20, 2015, in response to the request for public documents, suggests
that the police have only one copy of 911 call data connected
with an accident taking place on February 2, 2015 in Mr. E.W.
apartment located in California, Beverly-Hills. (case 2, 18).
The police report dated February 20, 2015 suggests that the police
of Beverly-Hills witnessed an accident occurring at the above
address, namely a death involving heart failure. Having conducted
investigation of the death case, the police found that the patient
had not taken any medicine or drugs. (case 1, 9-10).
The lawyer representing the claimant, Yarmush M.M. further clarified
the details of the aforesaid occurrence stating that on February
20, 2015, at the place of E.W. residence, a friend of his son
died as a result of heart failure, while E.W. himself was at the
time in Russia.
Therefore, having studied the said documents, the court did not
identify any reason to believe that Mr. E.W. may have a negative
influence on his sonís psychological state.
As for the statement made by Solomatina A.A., acting as a witness,
the court was skeptical of the validity thereof, as it was rather
emotional and involved offensive phrases towards the claimantís
Pursuant to item 8 of the RF Supreme Court Plenum Resolution,
dated May 27, 1998 No 10 ďOn legal resolution of disputes dealing
with childcare issues by courtsĒ, when determining the procedure
for a parentís communicating with their child, it is necessary
to take account of a childís age, his health state, degree of
his emotional attachment to each of the parents and other circumstance,
which may impact on a childís physical and emotional health or
Having examined all the evidence involved in the case, and taking
into account the fact that both parents have equal rights and
responsibilities with respect to their common child, and considered
the typical characteristics of the latter, such as his age (7
years and 6 months), adequate self-care skills and state of health
(over the period from 2014 to 2015 the boy had had 6 complains
about cough (case 1, 141-144), the childís daily schedule, as
well as the report presented by the guardianship and custodianship
agency, the court decided that the options presented by the parties
concerning procedure for communicating with the child may be partially
The court believes that the most advisable and adequate procedure
for communication between the father and the son shall be as follows:
from 2 p.m. of each third Saturday to 6 p.m. of each third Sunday
and from 2 p.m. of each fourth Saturday to 6 p.m. of each fourth
Sunday without the motherís presence (giving the boyís statement
that his mother doesnít like it when his father comes over) at
E.W. apartment located at the following address: Moscow xxxx,
with the right of visiting public places and events. At the same
time, E.W. shall be obliged to ensure that child attands various
out-of-school classes or activities if so required during the
The claimantís request on communicating with the child during
a two-week period with the latter living at the claimantís place
of residence may not be satisfied as it does not correspond to
the childís interests: due to his young age the boy still requires
care from adults in preparing his homework, while E.W. does not
speak Russian. Moreover, taking into account the aforesaid psychological
report, the boy is more attached to his mother, that is why her
long absence (during a two-week period) may have a negative effect
of his psychical state.
The fatherís request with regard to a daily 15-minute communication
with the son within the period from 8 p.m. to 9 p.m. either by
phone or through Skype shall also be satisfied.
L.V., claims that the father, Mr. E.W., seeks to kidnap the child
as long as the latter had already been subject to criminal liability
for a 4-year period in the US on charges of kidnapping children
(the claimant has four children from his previous marriage). In
view of the above, the respondent insists on her son communicating
with his father exclusively in her presence.
The information contained in the case report presented by the
respondent does not allow the court to accurately determine whether
or not Mr. E.W. had really been convicted on charges of kidnapping
his children. The aforesaid document states that E.W. had been
convicted for abuse of guardianship (case 1, 158). The defendant
was put in jail on March 27, 2000, being released from custody
on the same day. (case 1, 160). On April 8, 2000, a sentence was
passed on case No xxxx and the case was closed. On the same day,
a sentence was passed on case xxxx, following which the case was
closed. The sentence or court decision on the above case was not
presented to the court.
The lawyer, Yarmush M.M., representing the claimant, did not
deny Mr. E.W. having faced criminal charge for violating the rights
of guardianship, as the latter took them on his trip to Russia
without their motherís consent. However, upon his return to the
US, all the charges were dropped.
Therefore, in view of the above, the statement by L.V. on her
husbandís alleged intention to kidnap the son may not be considered
to be founded.
Pursuant to article 63 of the RF Family Code, both parents share
equal responsibility for the health, physical, psychological and
moral well-being of their children, the court does not believe
it necessary to impose additional obligation on the parents for
committing the aforesaid actions.
All the issues linked to bringing up and educating children are
to be mutually resolved by both parents taking into account a
childís interests and personal opinion, as stipulated in Article
65 of the RF Family Code.
As far as the issue of Alexander departing from Russia is concerned,
the law stipulates that a parentís departure with a child from
the territory of Russia requires another parentís consent.
In accordance with the provisions of article 66.3 of the RF Family
Code, the court made it clear to the respondent, L.V., that, in
case if one of the parents should fail to observe the courtís
decision, the latter shall be subject to legal prosecution as
stipulated by the RF Civil Procedure Code. Consequently, in case
if one of parents should grossly violate a court decision, the
court shall be entitled to resolve in favor of passing the rights
to the child to another parent, upon the request of the latter
and in keeping with the childís best interests and personal opinion.
Guided by articles 21, 61, 63, 65, 160 of the RF Family Code
and by articles 194-198 of the RF Civil Procedure Code, the court
DECIDED AS FOLLOWS:
The claim filed by L.V. against E.W. on marriage dissolution
and determining the place of the childís domicile shall be satisfied.
The marriage, entered by and between E.W. and L.V. shall be dissolved
(Marriage Certificate No xxx).
The underage Alexander W. born on August 5, 2007, shall live
at the place of his motherís residence.
The claim by E.W. against L. V. on determining the procedure
for the fatherís communicating with the son, as well as the counterclaim
by L.V. against E.W. on determining the procedure for the fatherís
communicating with the child will be partially satisfied.
One parentís departure with a child from Russia shall require
another parentís consent.
All education issues with respect to their son, Alexander, are
to be mutually resolved by both parents.
The court shall dismiss the rest of the claim.
L.V. shall be obliged not to impede E.W. communication with the
son, which shall be held as specified herein.
Any of the parents found guilty of violating the courtís decision
shall be subject legal prosecution as specified by the RF Civil
The above decision can be appealed to the Moscow district within
a month upon the final execution of the said decision.