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Case about contact order

city of Khabarovsk February 12, 2019

Zheleznodorozhny District Court of Khabarovsk composed of:
presiding judge Tsurikova T.A.,
in the presence of the secretary Gogoleva O.N.,
with participation of Khabarova A.A., a representative of tutorship and guardianship authority, R. H., petitioner in the main action and respondent in the counterclaim,
Y., representative of R.H.,
P. representative of P.M.,
Demina I.G., interpreter,
having considered a civil case brought by R.H. against P. M. in an open court session regarding determination of the communications procedure with the child, compelling her not to create obstacles to communicate with the child, and counterclaim brought by P.M. against R.H. regarding recovery of alimony payments,

MAKES THE FOLLOWING FINDINGS:

Petitioner R.H. (US citizen) has filed a claim with the Zheleznodorozhny District Court of Khabarovsk against P.M. regarding determination of the communications procedure with the child, compelling her not to create obstacles to communicate with the child. He informed that he and the respondent were married on February 1, 2009 in Poipu, Hawaii, the USA, and then lived together in S., Oregon. Having married, respondent P.M. changed her last name for H., she did not change her last name in Russia, and she has a US green card which is a permanent residence permit with the right to work in the USA. When the petitioner and the respondent were married, son S.H. was born into their family on October 1, 2011. The child has the US citizenship by birth. Since he was born and until he was five years old, S. permanently lived in the USA together with the parents in a comfortable house owned by father. Since March 31, 2017, the child lived with father in the house, because mother, by court judgment, moved to another residence in connection with their divorce. The respondent communicated with the child in accordance with the schedule established by judge. On the basis of the father's consent, the child acquired Russian citizenship as well. S. is very attached to both parents and to the grandmother on his father's side, who personally participated in the upbringing of her grandson. The petitioner personally daily cared for the son, took him to school, he and the son went in for sport, he was busy with the son's physical development, looked after the child's health. The son went to a French school where he fully adapted to the educational process. In summer 2018, the petitioner and the defendant were divorced by the Court of the State of Oregon for the County of Columbia. The petitioner got custody of his son, the respondent got a communications procedure. The petitioner got custody of his son, because, in the opinion of the court, it was the father who could provide the child with the proper treatment and care in the best way. In addition, within the latest three years, mother kept to strict vegan diet (only raw vegetables and fruits, nuts). The diet resulted in fatigue for the child. In October 2018, the respondent P.M. took the child to Russia illegally where she has been keeping the child in a place unknown to the petitioner since the moment, isolating the child from the petitioner and other relatives. The unexpected leave of mother for the Russian Federation broke the normal way of life of the child, he was separated from his father and grandmother on his father's side, and he lost his home, friends from the school, his uncle and aunt, which could not but affect the psychological well-being of S. The respondent does not answer phone calls. The respondent answer some emails, but does not give the actual address of the child's residence to the petitioner and requires money for the opportunity to talk to the child on the phone or Skype. The respondent does not live in the place of registration. Since the child actually lives in Russia with mother, who intends to continue living in the Russian Federation, the parents, at present, have no disagreement regarding the place of residence of the child. However, the respondent P.M. continues to prevent the petitioner from communicating with him over the phone or video communicating, and meeting him during visits to Russia. The petitioner has been working for D. as a leading engineer for 20 years, has no bad habits, lives a healthy lifestyle and goes in for sports, is positively characterized at the place of residence and work. In the USA, the petitioner has been still living in his house where S. spent his childhood, voluntary participates in the maintenance of the child, regularly providing USD 400 for the child's needs. S. loves his father very much. The child has been always attached to his father. It is hard for the petitioner to bear the forced separation from the child, he is ready to come to Russia every two months to spend some weeks with the child. In addition, he began to look for a suitable job in the Russian Federation to stay permanently in Russia, close to the actual residence of his son. That is why the petitioner asks to compel the respondent not to create obstacles for the petitioner to communicate with the child. He asks to establish the following communications procedure for father H.R. and son H.S.: five minutes or more at the wish of the child, every day, by means of telecommunication between 19 hours 00 minutes and 19 hours 30 minutes (Moscow time). He asks to compel P.M. to provide son with a working telecommunication device for the time established by the court to communicate with father. While staying in Russia, H.R. will spend every Tuesday, Thursday from 17 hours 30 minutes to 20 hours 30 minutes with H. S., visiting cultural and entertainment events. And from 18 hours 00 minutes on Friday until 18 hours 00 minutes on Sunday, without the presence of the child's mother, taking into account the child's daily routines and classes. Having notified P.M. of his arrival to the Russian Federation via email at least three weeks before, H. R. will spend one summer month, one week at the end of December every year with the right to departure from the Russian Federation on the basis of the prior consent of mother.

During the court session with participation of the interpreter, the petitioner H.R. reasserts the claim. He explained that the respondent, having not warned and having deceived him, took their common son to Russia through Mexico in October 2018 as he initially learned from the police where he appealed to find his son. Since then, he has not seen S., talked to him over the phone, via Skype. He contacts P. M. via email, transfers money in the amount of USD 400 to her US bank account for the son maintenance. He believes that the child's place of residence must be determined proceeding from the interests and wish of son. In the USA, he owns a residential house, has a stable wage amounting to about USD xxx (USD xxx net of taxes).

During the court session, Y., representative of the petitioner, asks to satisfy the requests of H.R. on the basis of the grounds referred to in the claim.

The respondent P.M., being notified of the time of the claim consideration, fails to appear before the court; in accordance with the provisions of Art. 167 of the Civil Procedure Code of the Russian Federation, the court finds it possible to hear this civil case in the absence of the respondent.

P., representative of the respondent, does not acknowledge the claim to the extent of compelling the respondent to provide the child with a working telecommunication device to communicate with father, and to the extent of the child's communicating with the petitioner in the absence of mother and outside of the Russian Federation, reasserting written objections to the claim.

In addition, P.M., via her representative, filed a counterclaim against H.R. regarding recovery of alimony payments to maintain minor H. S. in the amount of one fourth of all kinds of wages starting from 02/12/2019 until the child approaches the age of full majority.
During the court session, H.R. does not acknowledge the counterclaim, explains that he participates in maintaining the child voluntarily, transferring USD 400 to P.M.

During the court session, P.K., witness on the side of H. R. explains that he is a father of P.M., a grandfather of minor H.S. He has not seen P.M. and grandson since December 2016, when he refused his daughter to help obtain Russian citizenship for S. H. is a caring father and fond of S. He learnt from H.R. that he and P.M. divorced, she left the USA with the child, that H.R. transfers USD 2,000 to Marina on the basis of the court judgment, and USD 400 voluntarily to maintain the child. He does not approve of the daughter's behavior who took the child from the USA; had she lived with the husband, grandson would have had a nuclear family.

Having listened to the parties, taking into account the testimony of the witness, explanations of the representative of the tutorship and guardianship authority about impossibility to provide a reasoned opinion, having scrutinized and assessed the evidence submitted by the parties, the court makes the following findings.

The case file materials show that H.R. and P.M. were married since 02/01/2009 until 08/15/2018 in the USA, when son H.S. was born into their family on 10/01/2011, as confirmed by the submitted certificate of dissolution of marriage, cancellation or registration of civil partnership, and birth certificate.

The Court of the State of Oregon for the County of Columbia by its judgment on dissolution of marriage between H.R. and P.M. (the matter came before the court for trial on April 19, 20, 25 and June 6, 2018), adjudged the sole legal custody of S. to father and communications procedure to mother.

According to the technical director of D., the petitioner in the main action H. R. has a 20-year continuity of employment with the company, and is characterized as a perfect employee.
In her letter, Emily MacFaul, HR specialist of D., confirmed that H. R. has been working for the company since April 6, 1998, has a good reputation.

According to letters from Amandin Brue, Karin Zimber, Sara Stevens, teachers of H.S. of nursery school and in the initial school, the boy is characterized as a talented, hard-working student, socially integrated, having good relations with age-mates, and H.R. is characterized as caring father participating in the school life of the child.

To substantiate the arguments regarding participation of H.R. in life of his son, he provided photos of the children's parties, sport events where S. participates (in his words).

In accordance with Art. 7 of the Universal Declaration of Human Rights (adopted at the third session of the General Assembly of the UN by resolution 217A (11) dated 12/10/1948), everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. In accordance with Art. 25 of the Universal Declaration of Human Rights, motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

According to Art. 402 part 2 of the Civil Procedure Code of the Russian Federation, the courts in the Russian Federation consider cases involving foreigners, if the respondent has his or her place of residence in the Russian Federation.
As it follows from the provisions of Art. 8 of the Family Code of the Russian Federation, family rights shall be defended by court according to the rules of civil legal proceedings, and in cases stipulated by this Code, by state bodies, in particular by the tutorship and guardianship authorities. Family rights shall be defended in the ways stipulated by the relevant articles of this Code.

In accordance with the provisions of Art. 55 part 1 of the Family Code of the Russian Federation, child shall have the right to communicate with both of his or her parents, with his or her grandparents, his or her brothers and sisters, and also with other relatives. The dissolution of the parents' marriage, its annulment or the parents' living apart shall have no impact on the child's rights. If the parents live apart, the child shall have the right to communicate with each of them. The child shall have the right to communicate with his parents also in the case their living in different states.
The aforesaid provisions of the law provide for the protection of family rights, including parents' rights to communicate with the child.

In accordance with Art. 15 part 4 of the Constitution of the Russian Federation, the universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system.
In accordance with Art. 3 clause 1 of the Convention on the Rights of the Child adopted by the General Assembly of the UN on November 20, 1989 and entered into force on September 2, 1990, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. It follows from the provisions of Art.8 of the Convention for the Protection of Human Rights and Fundamental Freedoms adopted by the Council of Europe on November 4, 1950, that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The said provision of the Convention includes the parents' right to take measures aimed at reuniting with their child, and the obligation of national authorities to take such measures. This applies not only to the cases when children are taken under compulsory custody of the state, but also to the cases when disputes regarding communication with and residence of the child arise between parents and/or other members of the child's family.
Since children are one of the most vulnerable groups of the society, attention should be paid to the child both as to an individual and to a member of society with certain rights.
Art. 3 of the Convention on the Rights of the Child provides for that the States-members of the Council of Europe undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Accordingly, in this document the state's care in the field of assurance of the child's well-being is primary in relation to the execution of rights and duties of parents.

The Convention on the Rights of the Child establishes the relations between the children and the adults as those between a right holder and a duty holder.

The Russian Federation is a social state whose policy is aimed at creating conditions for a worthy life and a free development of a human being (Art. 7 part 1 of the Constitution of the Russian Federation); in the Russian Federation, recognition and guarantees shall be provided for the rights and freedoms of human being and citizen according to the universally recognized principles and norms of international law and according to this Constitution (Art. 17 part 1 of the Constitution of the Russian Federation).

The aforesaid is consistent with Articles 3 and 18 of the Convention on the Rights of the Child which provide for that in all actions concerning the children, the States Parties shall pay basic attention to the best interest of the child, shall undertake to ensure the child such protection and care as is necessary for his or her well-being.

Specifying those fundamental principles, the Federal Law No. 124-FZ About Basic Guarantees of Rights of the Child in the Russian Federation dated July 24, 1998, indicates formation of legal basis to guarantee the child's rights, guaranteed execution of the children's rights recognized by the Constitution of the Russian Federation, prevention of their discrimination, restoration of their rights in case of violation thereof assistance in physical, intellectual, mental, spiritual and moral development of the children, realization of the child's personality in the interests of the society, as goals of priority of the national policy regarding the child's interests.

According to Art. 9 clause 2 of the Convention on the Rights of the Child, the States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

In accordance with Art. 61 of the Family Code of the Russian Federation, parents shall enjoy equal rights to live together with the child and participate in his or her upbringing. Parents have right and are obliged to upbring their children. Parents are responsible for upbringing and development of their children. They must care for the health, physical, mental, spiritual and moral development of their children. Article 65 of the Family Code of the Russian Federation determines that all the issues regarding the children's upbringing and education shall be resolved by the parents by mutual consent, proceeding from the children's interests and taking into account the children's opinion (Art. 63 of the Family Code of the Russian Federation). Parents (or one of them) shall have the right in case of differences between them, to refer the differences to tutorship and guardianship authority, or to a court to be settled. According to Art. 66 of the Family Code of the Russian Federation, the parent, residing apart from the child, shall have the right to communicate with the child and to take part in his upbringing and in resolving the issue related to the child's education. The parent, with whom the child lives, shall not prevent the child from communicating with the other parent, unless such communication damages the child's physical and mental health or his moral development. Parents shall have the right to enter into a written agreement on the way the parent, residing apart from the child may exercise his or her parental rights. If the parents cannot reach an agreement, the dispute shall be resolved in a court with participation of the tutorship and guardianship authority, upon the demand of the parents (one of them).
The court found that H.R. is a caring father of H. S. who created conditions in the USA for his upbringing and development. P.M., her representative in court have not submitted evidence to the contrary to the court.

Given the circumstances, the present place of residence of S. is the Russian Federation. Herewith, the rights of H. R. to communicate with and upbring the child are limited by P.M.
Under such circumstances, the claim regarding determination of the communications procedure with the child is legal, reasoned and should be satisfied.

Taking into account the remote residence of the petitioner from the child, the court believes that it is necessary to determine the following communications procedure between H.R. and minor H.S.:
- five minutes or more at the wish of the child, every day, by means of telecommunication from 19 hours until 19 hours 30 minutes (Moscow time);
- while staying in the Russian Federation, H.R. will meet and spend every Tuesday, Thursday from 17:30 until 20:30 (local time, at the place of residence of the child) with minor H.S., visiting cultural and sports events, public entertainment objects, keeping to the daily routines appropriate to the age of the minor child. From 9:00 until 18:00 on Saturday, without the presence of mother, taking into account the child's daily routines and classes. Having notified P.M. of his arrival to the Russian Federation via email at least three weeks before.
In addition, the court believes it is necessary to clarify for P.M. that it is not permitted to prevent H.R. from communicating with his son H. S.
The claim regarding compelling P.M. to provide her son with a working telecommunication device is not allowed, because it refers to the issue of execution of the court judgment by the respondent. According to the arguments referred to in the claim and the case file materials, P.M. contacted with H.R., with the court via Internet connection (email), that is why there are no doubts that the respondent has a telecommunication device. Telecommunication applications are free for users (e.g. Skype, WhatsApp, etc.). On the same ground, the arguments of P., representative of the respondent, stating that the court, having satisfied the claim to communicate with the child via telecommunication connection, imposes duty on the respondent to buy a connection device, are found by the court to be unreasoned.

The court finds the arguments of P., representative of the respondent, stating that father should meet the son only in the presence of mother to be unreasoned and violating the petitioner's rights to communicate and spend time with his son freely.
Taking into account that H. R. has no residential premises in the Russian Federation, and the court has not been provided with the information about the living conditions of the petitioner when he visits the Russian Federation, and whether he will be able to create conditions for sleeping, eating and resting of S., the claim regarding determination of the communications time from 18:00 on Friday until 18:00 on Sunday (with overnight stays) is not allowed.

The claim to the extent that H.R. will spend one summer month, one week at the end of December every year with the right to departure from the Russian Federation shall not be satisfied on the following grounds.

According to Art. 409 part 1 of the Civil Procedure Code of the Russian Federation, judgments of foreign courts, including judgments on the approval of an amicable settlements, shall be acknowledged and executed in the Russian Federation should this be stipulated by an international treaty of the Russian Federation.
Taking into account that the treaty providing for mutual recognition and enforcement of the court judgments was not entered into by and between the Russian Federation and the USA, the judgment of the Court of the State of Oregon for the County of Columbia regarding the dissolution of marriage between P.M. and H.R., who was adjudged sole legal custody of S., cannot be acknowledged in the Russian Federation as binding, and has no prejudicial effect for the consideration of this matter.

Therefore, the court judgment regarding the claim under consideration is not binding in the territory of the Russian Federation.
Taking the aforesaid into account, the court finds the arguments of P., representative of the respondent, stating that staying with his son in the USA, H.R. has a full custody of the child, that is why execution of the Russian court judgment limiting his staying with the child shall not be binding upon him, to be reasoned.

There are no legal arrangements to enforce the Russian court judgment in the territory of the USA.

Given the aforesaid and the explanations of the petitioner H.R. stating that in case of departure of the child to the USA, he will determine the place of residence of S. (taking into account the opinion and the interests of the latter), the court finds that the claim regarding the departure of the child outside of the Russian Federation should not be satisfied.
Moving to consideration of the counterclaim of P.M. against H. R. regarding the recovery of alimony payments to maintain the child, the court proceeds from the following.
According to Art. 402 part 2 clause 3 of the Civil Procedure Code of the Russian Federation, the courts in the Russian Federation consider cases involving foreigners on recovery of alimony payments, if the petitioner has his or her place of residence in the Russian Federation.

In accordance with Art. 7 of the Family Code of the Russian Federation, citizens shall dispose of the rights possessed by them arising from their family relations, including the right to protect these rights, at their own discretion, unless otherwise established by the Family Code of the Russian Federation. The exercising of their rights and discharge of their duties by family members shall not violate the rights, freedoms and legal interests of the other family members and of other citizens.
In accordance with Art. 80 of the Family Code of the Russian Federation, parents shall be obliged to maintain their minor children. Parents shall have the right to enter into an agreement on the maintenance of their minor children (agreement on the payment of alimony) in conformity with Chapter16 of this Code.
Agreement on the payment of alimony (amount of, terms and procedure of alimony payments) shall be entered into by and between a person obliged to pay the alimony and the recipient thereof, and in case of incapacity of the person obliged to pay the alimony and (or) the recipient thereof, it shall be entered into by and between the representatives of the persons. Partially capable persons shall enter into the agreement on the payment of alimony subject to the consent of their legal representatives. Agreement on the payment of alimony shall be concluded in a written form and shall be subject to the notary certification (Articles 99, 100 of the Family Code of the Russian Federation).
If, in the absence of the agreement on the payment of alimony between parents, no maintenance is provided for the minor children by the parents, the means for maintaining the minor children (the alimony) shall be recovered from the parents through court (Art. 80 of the Family Code of the Russian Federation).
Plenum of the Supreme Court of the Russian Federation in their Resolution No. 56 About Application of the Legislation by Courts when Considering Cases connected with Recovery of Alimony explained that the claim regarding the recovery of alimony payments for a minor child is to be satisfied by court regardless of the parents' employment and the child's need in the alimony. The alimony for the minor children shall be recovered percentagewise from their parents' earnings and (or) their other income (Art. 81 of the Family Code of the Russian Federation) or may be recovered in a fixed amount of money or simultaneously percentagewise and in a fixed amount of money in cases referred to in Article 83 of the Family Code of the Russian Federation. When determining the amount of alimony percentage from their parents' earnings and (or) their other income, the court should proceed form the provisions of Art. 81 clause 1 of the Family Code of the Russian Federation, which states that alimony shall be recovered from the child's parents monthly in the amount of: one fourth of parents' wage and other income for one child, one third - for two children, and half of the parents' wage and other income - for three or more children. The amount of the percentage established by Art. 81 clause 1 of the Family Code of the Russian Federation may be reduced or increased by the court with account for the financial situation or the family status of the parties, and also for other circumstances worth of attention (Art. 81 clause 2 of the Family Code of the Russian Federation). Such circumstances, in particular, may include: the payer's obligation to pay alimony for other minor children and (or) disabled children of majority age, and for other persons whom he or she has to maintain; low income of the alimony payer; health condition of the alimony payer (for example, incapacity for employment due to age or health condition), and of the child for whom the alimony is recovered for maintenance (for example, serious disease of the child requiring long-term treatment).

According to Art. 83 part 1 of the Family Code of the Russian Federation, If there is no agreement on the payment of alimony for minor children between the parents, and if the parent obliged to pay the alimony has irregular or changing wage and (or) other income, or if this parent receives the wage and (or) other income fully or in part in kind or in foreign currency, or if he or she has no wage and (or) other income, and also in other cases, and if the alimony is recovered in percentage from the parent's wage and (or) other income is impossible, difficult or essentially infringes upon the interests of one of the parties, the court shall have the right to define the amount of the alimony to be recovered monthly, as a fixed monetary amount, or as the percentage (in conformity with Article 81 of this Code) and a fixed monetary amount simultaneously.

Thus, the law determines the rule for recovery of alimony payments to maintain the children in the form of percentage from the parent's income, and the alimony may be recovered in the form of a fixed monetary amount only in exceptional cases when recovery in percentage violates the rights of the child to be maintained by his or her parent(s).
It is found that H.R. has a stable wage, that there is no agreement on the payment of alimony between him and P.M. to maintain S.

Therefore, the claim regarding recovery of alimony payments from H.R. to maintain minor H.S. in the amount of one fourth of all kinds of wages starting from 02/12/2019 until the child approaches the age of full majority, is reasoned and should be satisfied.
The arguments of the respondent in the counterclaim regarding the need to dismiss the claim to recover alimony from him, because he participates in the child maintenance, i.e. transfers USD 400 to the account of P.M., are considered to be unreasoned by the court.

According to the bank account statement, money was transferred to P.M., however, it is impossible to determine the payments purposes, its actual receipt by the petitioner from the said statement. No evidence confirming that the parties have reached the agreement regarding the alimony payments has been submitted to the court. Therefore, there are no grounds to dismiss the claim regarding recovery of alimony payments.

In view of the aforesaid, being guided by Art. 194-199 of the Civil Procedure Code of the Russian Federation, the court

JUDGED:

To satisfy partially the claim of H. R. against P. M. regarding determination of the communications procedure with the child, compelling her not to create obstacles to communicate with the child.
To determine the following communications procedure between H.R. and minor H.S. born on October 1, 2011:
- five minutes or more at the wish of the child, every day, by means of telecommunication from19 hours until 19 hours 30 minutes (Moscow time);
- while staying in the Russian Federation, H. R. will meet and spend every Tuesday, Thursday from 17:30 until 20:30 (local time, at the place of residence of the child) with minor H.S. born on October 1, 2011, visiting cultural and sports events, public entertainment objects, keeping to the daily routines appropriate to the age of the minor child. From 9:00 until 18:00 on Saturday, without the presence of mother, taking into account the child's daily routines and classes. H.R. notifies P.M. of his arrival to the Russian Federation via email at least three weeks before the arrival.
To clarify for P.M. that it is not permitted to prevent H.R. from communicating with his son H. S. born on October 1, 2011.
To dismiss the remaining part of the claim.
To satisfy the claim of P.M. against H. R. regarding recovery of alimony payments.
To recover from H.R. alimony payments in favor of P. M. to maintain minor H.S. born on October 1, 2011, in the amount of one fourth of all kinds of his wage and other income on monthly basis starting from February 12, 2019 and until the child approaches the age of full majority.
The judgment may be appealed to the Khabarovsk Territory Court through the Court which made the judgment within one month from the date when the judgment is prepared in its final form.

Judge /Signature/ Tsurikova T.A.