Court case about custody in Russia

DECISION
In the name of the Russian Federation

March 6, 2018 Moscow

Tverskoy District Court of Moscow composed of the presiding judge Orekhova A.Y., with the secretary Udalova K.A.,
with the participation of the claimant S.,
the representative of the claimant Yarmush M.M.,
having examined in the open court session a civil case on the counter-claim of F. against S. on the determination of the place of residence of the minor children,

FOUND

Initially S. appealed to the court with a claim to determine the place of residence of the minor children with the father, indicating that he was married to the defendant, the parties have two common children, the children were born and live with their father in France, after the dissolution of the marriage, the parties agreed on the living of children with the father but the defendant took the children for the holidays and went to Russia with them without their father’s consent;

F. filed a counter-claim on the determination of the place of residence of the children with the mother, arguing that the father of the children does not provide proper upbringing and care for the children, he does not have enough financial resources to provide the children with leisure time, the father of the children does not allow the mother to communicate with them in private, the children lack the maternal attention.

During the trial, S. stated the renunciation of the claim, the proceedings in terms of claims of S. were discontinued by the decision dated September 13, 2017.

The claimant F. appeared at the court session, supported the stated requirements in full, insisting on their satisfaction, explaining that she lives in Russia with a cohabitor from whom she has two children; her living conditions in Moscow allow her children from her first marriage - Kevin and Evangelina - to live with her.

The representative of the defendant Yarmush M.M. did not recognize the counter-claim at the court session, stating that the children are French citizens, were born and live permanently in France, study there and categorically do not want to live in Russia, F. has another family and two other children in Russia.

A representative of a third party - the guardianship and custodianship body of the Department of Social Protection of Population (DSPP) of the Tverskoy District of Moscow did not appear in court, was duly notified, asked for the case to be considered in his absence.

A representative of a third party - the guardianship and custodianship body of the DSPP of the Basmanniy District of Moscow did not appear in court, was duly notified, asked for the case to be considered in his absence.

A representative of a third party - the Department of the guardianship and custodianship of the Ministry of Education of the Moscow Region in the Ramenskiy Municipal District, Bronnitsy and Zhukovskiy urban districts did not appear in court, was duly notified.
In accordance with Art. 167 of the Code of Civil Procedure of the Russian Federation, the court determined to consider the case at this turnout.

After checking the case file, after hearing the participants of the process, having examined the conclusion of the DSPP of the Tverskoy District of the CAD of Moscow, having questioned the witnesses, the court comes to the following.

In accordance with Part 1 of Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as a basis of its claims and objections, unless otherwise provided by the federal law.
According to Art. 67 of the Code of Civil Procedure of the Russian Federation the court evaluates the evidence according to its inner conviction, based on a comprehensive, complete, objective and direct examination of the evidence in the case.
No evidence has predetermined force for the court.
In accordance with Art. 195 of the Code of Civil Procedure of the Russian Federation, the decision of the court must be legal and justified. The court bases the decision only on the evidence that was examined at the court session.
In accordance with Part 3 of Art. 196 of the Code of Civil Procedure of the Russian Federation, the court takes the decision on the stated requirements of the claimant. However, the court may go beyond the stated requirements in cases provided for by the federal law.
In accordance with Part 3 of Art. 65 of the Family Code of the Russian Federation, the children’s place of residence when the parents live separately is established by the agreement between the parents.
Where no agreement is in place, the controversy between the parents is resolved by the court in the children’s interests and taking into account their opinion. At the same time, the court considers the child’s devotion to each parent, brothers and sisters, his/her age, moral and other personal qualities of the parents, relations existing between each parent and the child, the possibility of creating conditions for upbringing and development of the child (occupation, work pattern of parents, financial and family status of parents and others).

It was established in the case that on October 25, 2008 S. and F. entered into marriage; by the decision of the Court of Large Instance of Nimes of the French Republic dated February 26, 2014 the marriage between the parties was dissolved.

The parties have two common minor children.
The parties lived together in France at the address: ---.
After the dissolution of the marriage, the parties determined the place of residence of the children with the father in France (v. 1 l.d. 16).

After the dissolution of the marriage, S. lives in France at the address: ---. Children of the parties Kevin and Evangelina live with their father, study at public schools in France. S. owns the said accommodation on the basis of a rental agreement concluded with the owner of the apartment X. The term of the apartment rental is three years - from September 30, 2015 to September 29, 2018. This accommodation is a three-room apartment with a living area of 67 sq.m., consisting of an equipped kitchen, a living room with a balcony, two bedrooms, a bathroom, a toilet, an entrance hall. The rent is 650 euros per month.

F. lives in Moscow at the address: --- together with her cohabitor K. and two children. The specified accommodation belongs to F. on the right of ownership and is non-residential premises.

According to the inspection report on living conditions at the indicated address compiled by the DSPP of the Basmanniy district of Moscow, these non-residential premises with an area of 40.4 sq. m are located on the 3rd floor of a five-storied building on the territory of the complex of apartments “TriBeCa APARTMENTS”, consist of three rooms and a combined bathroom; the passing room serves as a kitchen and living room, it's equipped with a kitchen set, table, chairs, pull-out sofa, necessary appliances, the other two rooms have panoramic windows and a balcony, one of which is 7 sq. m, it's equipped as a bedroom of F., her cohabitor K. and their child, the second room with an area of 9 sq. m is equipped as a children's room, it has a bunk bed, a sleeping place for the child is in the lower tier, also the room has a wardrobe for clothes, writing desk, chair, bedside table, TV set. Good living conditions have been created in these premises for the temporary stay and rest of the children Kevin and Evangelina, these premises are not intended for permanent residence.
In addition F. owns the 1/2 share in the ownership of the apartment at the address: ---. Since October 21, 2015 F. herself, the minor Kevin and Evangelina, the minor G. are registered in this accommodation.

According to the inspection report of living conditions at the indicated address, compiled by the DSPP of the Tverskoy district of Moscow, this accommodation is a two-room apartment with an area of 37 sq. m, the size of rooms is 16 and 15 sq. m, located on the fifth floor; in the specified apartment F. does not live, the relatives of F. live in the apartment; sleeping places and places for games and children's activities in the apartment are not organized.
In addition F. owns the right of ownership of the land area of 603 sq. m at the address: ---.

According to the inspection report on living conditions at the indicated address dated December 7, 2017, compiled by the Department of guardianship and custodianship of the Ministry of Education of the Moscow Region in the Ramenskiy municipal district, Bronnitsy and Zhukovskiy urban districts, a two-storied private house with an area of 250 sq.m is at this address, located on a plot of 12 acres; on the ground floor there is a kitchen and living room, a bathroom, a dressing room and technical rooms; on the second floor - three separate rooms, a bathroom, a hall; at the time of inspection the house was being renovated, a pre-finishing work was done, there is a sanitary equipment (not connected), doors and windows are installed, partially there is furniture, two children's beds, the heating system is distributed. After the completion of the renovation, it will be possible for minor Kevin and Evangelina to live in the house.

At the same time from the departure certificate on the indicated address dated October 26, 2017, made by the Department of guardianship and custodianship of the Ministry of Education of the Moscow Region in the Ramenskiy municipal district, Bronnitsy and Zhukovskiy urban districts, it follows that as of October 21, 2017 the private house located at the indicated address, was put up for sale, as evidenced by the banner hung on the fence.

S. is the head of the transport company, is engaged in road haulage, his annual income is 29 900 euro, on March 1, 2014 he registered a marriage with a citizen of Ukraine K.

As follows from the explanations of the claimant F. she is engaged in business, is the general director of a commercial organization, her monthly income is about 200 thousand rubles. This information is not confirmed by documents by the claimant, the claimant submitted an extract from its account in PJSC Sberbank of Russia for the period from February 10, 2017 to February 15, 2018 that the account balance as of February 15, 2018 is 206 096.70 rubles. Also it follows from the explanations of F. that she lives with a common-law husband K. from whom she has two minor children, they live in the apartment on Krasnoselskaya st., K. works as an investigator of special cases, she plans to live with minor children in her private house in Ramenskiy district at the above address where the renovation is currently ongoing; her children Kevin and Evangelina were born and permanently reside in France, study there, she did not work during her marriage with S., she stayed at home with children, S. was often absent on business; after the dissolution of the marriage she returned to Russia, leaving the children with their father in France, she was not against the children living with their father, she gave to S. the permission to enroll children in school, but after the divorce the father of the children interfered with her communication with the children, the communication took place always in his presence, so she decided to take the children to Moscow; on August 2016 she brought the children to Moscow, where she registered them at the address: ---, also she placed the children at school with enhanced studying of foreign language No. 1231, children sufficiently know Russian because she communicates with children since their childhood in Russian, she lived with children in Moscow in her mother’s one-room apartment at the address: ---. S. took the children back to France.

From the explanations of the defendant S., interviewed by the court using the Internet program Skype, it follows that he has been living in France since 1998, currently the children Kevin and Evangelina live with him and his new wife K. in France, they have a three-room apartment, in which there are two bedrooms, the children sleep in one bedroom, he and his wife - in the other, the relationship between his wife and children is good, she does not work, takes care of children, they have no children, the children are interested in horses, in their free time they ride horses, the children spend their holidays with their grandmother (a mother of F.) in Spain, the children like to live in France, they don’t want to live in Russia, on August 2016 F. took the children for the rest and did not return them, she took them to Russia, he categorically disagreed and therefore filed this claim to the court and then he filed a claim to the French court prohibiting the departure of children from France, this case has not yet been considered; while in Russia, the children called him, complained that the new husband of their mother ran his hands all over them; he does not interfere and never interfered with the communication of children with their mother, on the contrary he considers it necessary because children love their mother, Evangelina constantly communicates with her mother on the phone via WhatsApp, however he takes phones from children away from Monday to Friday so that they can study and are not distracted by conversations.

From the testimony of the witness R. it follows that she is the mother of F., the grandmother of children Kevin and Evangelina, she has been living in Spain since 1983, her daughter F. has been living separately from her since the age of 18, Kevin and Evangelina were born in France, her daughter with S. and children lived in France as a family, since 2011 the daughter began to go on frequent business trips which her husband S.. did not like, quarrels occurred between them, there was a conversation about divorce in 2012; the children do not want to live in Russia, they are afraid of the common-law husband of F., who speaks rudely and obscenely; when the daughter brought the children to Russia, they, together with the daughter and the children, lived in her one-room apartment on Shmitovskiy proezd; the children often spend holidays with her in Spain, she also comes to France, the father of the children does not interfere with their contact with the children’s mother.

From the testimony of the witness N. it follows that she is a friend of R., they have been friends for five years, she doesn't know F. and S., she lives in Zelenograd, she met the children Kevin and Evangelina in August 2016, she communicated with them until October 2016, they walked together, she showed Moscow to children, the children occasionally stayed with her overnight, the children spoke with her in Russian, she does not know about the problems in the family of children, R. told her only that “not everything is so simple”, the children themselves also did not tell her about the relationship between their parents or about their unwillingness to live in Russia.

The court has no reason not to trust the testimony of these witnesses, since they were warned by the court about criminal responsibility for giving false testimony. The testimony of witnesses does not contradict the circumstances of the case.

F. asks to determine the place of residence of children on her place of residence, indicating that S. does not have the opportunity to be engaged in the upbringing of children and giving them enough time and attention due to frequent business trips, she brought up the children, also S. has small income, which can't ensure a normal life for children.

S., objecting to the satisfaction of the claim, indicated that the children did not want to live in Russia, they were born and raised in France where they had a social circle, F. has a new family in which there are already two children, the children are afraid of a common-law husband of F.

S. has presented a psychological report of a clinical psychologist Shmilevsky I. dated June 11, 2017 prepared in France to the case file, according to which the psychologist had a conversation with S., his wife K., children Kevin and Evangelina, during the conversation S. was calm, confidently answered questions, he did not show any aggression, including aggression towards the former spouse; the children showed maturity that was rare for their age, they experienced a difficult situation in the family, were worried about what decision would be made by the court, children did not want to return to Russia, they described an unstable and unsafe situation: mother who paid them little attention and aggressive and acrid stepfather, despite the fact that they loved their mother, they devoted to their father more, they had a good relationship with the stepmother.

According to the conclusion of the DSPP of the Tverskoy district of Moscow dated February 15, 2018, taking into account the opinion of children, the results of the examination of the accommodation at the place of registration of children and also taking into account the psychological report dated June 11, 2016, the guardianship body considers it appropriate to determine the place of residence of children with the father.

According to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 10 “On the application of legislation in resolving disputes relating to the upbringing of children by the courts”, deciding the issue on the place of residence of a minor in case of parents living apart (regardless of whether they are married), it must be taken into account that the child’s place of residence is determined on the basis of his interests, as well as taking into account the opinion of a child who has reached the age of ten years, provided that this does not contradict his interests (cl. 3 of Art. 65, Art. 57 of the Family Code of the Russian Federation).

At the same time the court takes into account the child’s age, his devotion to each of the parents, brothers, sisters and other family members, the moral and other personal qualities of the parents, the relations that exist between each parent and the child and the possibility of creating conditions for the upbringing and development of the child (taking into account the occupation and work pattern of parents, their financial and family status, bearing in mind that the property in the living conditions of one of the parents itself is not an absolute basis for satisfying the requirements of this parent), as well as other circumstances characterizing the situation that has developed in the place of residence of each of the parents.
When considering disputes on the determination of the place of residence of minor children, the courts also take into account the circumstances of the parents' permanent residence, permanent income and the possibility of ensuring a normal existence for the child.

By the time of consideration of the case, both children have reached the age of 10 years, since they constantly live and study in France, do not want to come to Russia, there is no opportunity to interview children with their direct participation in the court session, therefore the court interviewed the children using the internet program Skype in the presence of the interpreter Kozin I.N., a representative of the DSPP of the Basmanniy District of Moscow Alexandrova E.V. at the court session dated February 13, 2018.

Interviewed Kevin and Evangelina explained that they were born and live in France with their father and stepmother, they have good relationships with their family, they study well, they ride horses in free time, they go on horseback riding, they spend holidays with their grandmother in Spain, where they are at the moment, they love their mother but they don’t want to live in Russia with her, they don’t go to Moscow with their mother but they want their mother to come to France, the father doesn't forbid to talk to their mother but she came only once to them, the father doesn't say bad things about the mother, their Russian language is poor, it was hard to study at school in Russia, they do not like the mother's husband, as he speaks grossly and uses foul language. Kevin and Evangelina expressed a desire to live with their father.

According to Art. 57 of the Family Code of the Russian Federation, a child has the right to express his opinion when resolving any matter in the family affecting his interests, as well as to be heard in the course of any judicial or administrative proceeding. Consideration of the opinion of a child who has reached the age of ten years is obligatory, except in cases when this contradicts his interests.

Having evaluated the evidence gathered in the case, the court notes that the children are French citizens, the children acquired Russian citizenship on May 26, 2015, they were born in France, where they have been living for more than 10 years and are studying, children have a social circle and area of interests there. When interviewing the children at the court session, the court concluded that children did not speak Russian sufficiently to study at a Russian school. There are no living conditions for children with their mother.

In such circumstances, taking into account the provisions of Art. 57 of the Family Code of the Russian Federation, taking into account the conclusion of the DSPP of the Tverskoy district dated February 15, 2018 on the merits of the stated claims, case materials, testimony of witnesses and explanations of the parties heard during the trial, as well as acts of inspection of living conditions, the court, proceeding from the interests of children and taking into account the opinion of children, believes that the claims of F. on the determination of the place of residence of children with the mother are not subject to satisfaction, therefore, resolving the dispute between the parties on the merits and in full, considers it necessary to determine the place of residence of the minor Kevin and Evangelina with their father.
Based on the above and guided by art. 194-198 of the Code of Civil Procedure of the Russian Federation, the court

DECIDED:

To refuse in satisfaction of the counter-claim of F. against S. on the determination of the place of residence of minor children with the mother.
To determine the place of residence of the minor S. Kevin, born on September 17, 2003, the minor S. Evangelina, born on May 22, 2005 with the father S.
The decision may be appealed to the Moscow City Court within one month from the date of the decision in final form.
The appeal is filed through the Tverskoy District Court of Moscow