The dispute about custody and contact order

IN THE NAME OF THE RUSSIAN FEDERATION

COURT DECISION

Moscow March

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-оп 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 child’s 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 claimant’s 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 child’s studying and attending various out-of-school and sports activities; to keep E.W. informed on the child’s state of health, dietary and sleep regime, as well as various needs which may arise, as well as on the child’s 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 respondent’s 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 mother’s residence, as well as establishing the procedure for the father’s 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.– 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 About Attorney at Law 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 child’s 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 child’s 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 and cafes.

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 claimant’s 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 child’s domicile to be at the place of his mother’s residence. However, the lawyer voiced an objection to the proposed procedure, which insists on the father’s spending time with his son exclusively in the mother’s presence.

The respondent (counterclaimant) L.V. expressed full support for the counterclaim, still insisting on the father meeting with son in the mother’s presence to be the only procedure she is willing to accept.

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 witnesses’ 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 child’s domicile to be at the place of his mother’s 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 law.

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 son’s domicile to be at the place of his mother’s residence.

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 child’s physical and moral health and well-being.

In accordance with article 65 of the RF Family Code, when exercising their parental rights, parents must take into account their children’s 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 parent’s communicating with a child, unless such communication harms a child’s 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 parent’s 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 child’s 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 About Attorney at Lawwork. 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 MacDonald’s. 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 father’s visits. Once the boy stayed at his father’s apartment, but then went About Attorney at Law in the evening, because he was not used to sleeping at his father’s place.

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 child’s emotional state is stable, being free of fear or anxiety over his parents’ 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 son’s 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 claimant’s representative.

Pursuant to item 8 of the RF Supreme Court Plenum Resolution, dated May 27, 1998 No 10 “On legal resolution of disputes dealing with childcare issues by courts”, when determining the procedure for a parent’s communicating with their child, it is necessary to take account of a child’s age, his health state, degree of his emotional attachment to each of the parents and other circumstance, which may impact on a child’s physical and emotional health or moral development.

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 child’s 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 satisfied.

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 mother’s presence (giving the boy’s statement that his mother doesn’t 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 aforesaid period.

The claimant’s request on communicating with the child during a two-week period with the latter living at the claimant’s place of residence may not be satisfied as it does not correspond to the child’s interests: due to his young age the boy still requires care from adults in preparing his About Attorney at Lawwork, 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 father’s 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 mother’s 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 husband’s 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 child’s 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 parent’s departure with a child from the territory of Russia requires another parent’s 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 court’s 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 child’s 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 child’s 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 mother’s residence.

The claim by E.W. against L. V. on determining the procedure for the father’s communicating with the son, as well as the counterclaim by L.V. against E.W. on determining the procedure for the father’s communicating with the child will be partially satisfied.

One parent’s departure with a child from Russia shall require another parent’s 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 court’s decision shall be subject legal prosecution as specified by the RF Civil Procedure Code.

The above decision can be appealed to the Moscow district within a month upon the final execution of the said decision