• Legal service of the lawyer for Family Law in Russia
• Parental International Kidnapping / Abduction cases
  • How to return a child from Russia on the basis of the Convention on civil aspects of international child abduction of October 25, 1980
• Child custody lawyer in Russia
• Family lawyer for contact order with a child in Russia
• Disputes about children in Russia
  • A contact order case in Russian court
  • The dispute about communication with a child
  • The case about custody of children
  • The case about the custody of children
  • The case about international parental kidnapping
  • The procedure for communication with a minor child
  • Court case about contact order
• Reference
• Advocate on TV
• The lawyer in the ICAC at the CCI of the Russian Federation
  • Why the ICAC at the CCI of the Russian Federation should be selected as an arbitrator in the arbitration clause of a foreign trade contract
• Contact Us

The custody case in Russian court

September 21, 2017

Kuntsevskiy District Court of Moscow composed of:
the presiding judge Sherova I.G.,
with the secretary Moskovkina P.Y.,
having examined in open court session a civil case on the claim of O. to G. on the determination of the place of residence of children, the counter-claim of G. to O. on the determination of the place of residence of children, the determination of the procedure of communication with children,

FOUND:
O. filed a claim against G. determining the place of residence of minor children: son M., daughter S., son P., with the mother, indicating that after divorce with the defendant the children S. and P. live with her, children are dependent on her, the defendant does not provide the financial assistance for their maintenance, does not care about their health, physical, mental and moral development, her financial situation, income level, work schedule allow to maintain the children, there are all necessary conditions for their upbringing and development.

G. with regard to clarification, appealed to the court with a counter-claim, in which he asked to determine the place of residence of the children M. and P. with him; to determine the procedure of communication with his daughter S. according to the schedule specified in the claim.

The claim is motivated by the fact that M. and P. are currently living with their father G. in the United States of America, being citizens of this country where they have full medical care, place of residence. The mother of the children did not work at the moment of divorce, the family was completely dependent on the head of the family. The defendant in the counter-claim lacks the conditions for the upbringing and residence of three minor children, the defendant does not work anywhere, has big rent arrears and debts for public utilities; abuses alcoholic beverages, does not work anywhere, beats children.

At the court session the claimant, the representative of the claimant supported the claim on the grounds stated therein, the counter-claim was not recognized.
At the court session, the representative of the defendant did not recognize the initial claim, supported the counter-claim on the grounds stated therein.

A representative of the guardianship and custodianship body - the Department of social protection of the population of the district Krylatskoe in WAD of Moscow appeared at the court session, he considers it's necessary and in the interests of the children to determine the place of residence with the mother, and to determine the procedure of communication according to the schedule indicated in the conclusion for the father.

Representatives of the guardianship and custodianship body - the Department of social protection of the population of Balashikha of the Moscow Region did not appear at the court session, they were informed about the time and place of consideration of the case, the reasons for non-appearance were not reported to the court.

The court, having heard the persons involved in the case, the conclusion of the guardianship and custodianship body, having studied the materials of the case, comes to the following.

By virtue of cl. 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, 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).

In accordance with cl. 1 of Art. 63 of the Family Code of the Russian Federation, parents have the right and obligation to raise their children.

By virtue of the cl. 1 of Art. 66 of the Family Code of the Russian Federation, a parent living apart from the child has rights to communicate with the child, participation in his upbringing and decisions on matters of education of the child.

The parent with whom the child resides should not interfere with the communication of the child with the other parent, if such communication does not harm the physical and mental health of the child, his moral development.

During the consideration of the case, the court established that the parties are the parents of minor children: son Markus, daughter Sofia, son Philip.
On April 13, 2015 the marriage between the parties was terminated on the basis of the decision of the magistrate of the judicial district No. 205 of the Krylatskoe district of Moscow dated March 12, 2015.

Minor M. and P. are currently living with their father in the USA, Florida, where M. is in fourth grade and P. attends classes for three-year-old children.

By the court decision No. 447 dated September 6, 2016 of the Commission for the affairs of minors of the Balashikha urban district, the proceedings on the case of the administrative offence in respect of O. discontinued due to lack of components of the administrative offence.
According to references from psychoneurologic dispensary, ND, O. is not registered in dispensaries.

On April 10, 2017 a commission composed of the class teacher and social pedagogue of Balashikha School No. - conducted a survey of the living conditions of S. apartment, according to which the apartment is in excellent condition after the recent renovation, S. always looks neat and tidy.

According to the decree of the court bailiff of the Inter-district Department for the collection of spousal support payouts of FBSD of Russia in Moscow dated June 22, 2017, G. has debts in the spousal support payouts in the amount of --- rubles.

According to the act of the survey of the living conditions of the child, drawn up on April 14, 2017 by the specialists of the Department of guardianship and custodianship of the

Balashikha urban district, a one-room apartment at the address: --- is inhabited by O., her daughter S., common-law husband E..; the apartment has the necessary furniture, household appliances; the apartment has central heating, water supply, electricity. Living conditions for a minor child are available.

According to the conclusion of the Department of social protection of the population of the district Krylatskoe in WAD of Moscow dated September 6, 2017, it is advisable to determine the place of residence of minors with their mother, for the father it is necessary to determine the procedure of communication according to the schedule proposed in the conclusion.

Discussing the issue on determining the place of residence of minors, the court, taking into account primarily the interests of minor children, their age, devotion to each of the parents, the actual place of residence of the children, which is inappropriate to change, the desire of M. to live with his father and the conclusions of the guardianship and custodianship body, comes to the conclusion that it is expedient and necessary to determine the place of residence of the minor M. and P. with the father and the minor S. with the mother.

In addition, the court proceeds from the explanations given in p. 5 of 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”, according to which, in deciding the issue on the place of residence of a minor in case of parents living apart, 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.

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 advantage 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.

Taking into account the young age of children, their mutual devotion to each other and also on the basis of their interests, actually established order of residence of children, which is inappropriate to change, the court considers it necessary, taking into account the factual circumstances of the case, to determine the place of residence of minor M. and P. with the father and minor S. - with the mother.

The court considers this procedure for determining the place of residence of minors to be the most appropriate for the interests of children on the grounds stated above.
Discussing the claims for determining the procedure of communication of G. with her daughter S., the court proceeds from the following.

According to the explanations given in p. 8 of 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”, in deciding the procedure of communication of a parent with a child, the age of the child, his health condition, devotion to each of the parents and other circumstances that can affect the physical and mental health of the child, his moral development are taken into account.

Since the parties cannot reach the agreement on the issue of the exercise of parental rights by a parent living apart from the child, the court considers legal and fair, in accordance with cl. 2 of Art. 66 of the Family Code of the Russian Federation, p. 8 of 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”, based on the right of the parent living apart from the child to communicate with him, taking into account the interests of the minor child, the need to comply with the daily routine, to determine the following procedure of communication with his daughter for the claimant on the counter-claim: daily from 7 pm to 7.30 pm via Skype, Viber, WhatsApp, telegram; obliging O. to ensure communication channels of the child with the father and not to obstruct this communication; to determine the procedure of communication from 2 pm to 7 pm on Tuesday, Thursday, from 10 am to 8 pm on Saturday when the father is in Moscow; during the school holidays of S. in the period of stay of G. in Moscow - Monday, Wednesday from 10 am to 8 pm, this procedure should be determined until September 1, 2019 taking into account the child’s activities, health and desire.

The court considers the above procedure of communication with the daughter as the most appropriate to her interests on the grounds stated above.
Based on the above and guided by art. 194-198 of the Code of Civil Procedure of the Russian Federation, the court

DECIDED:

To partially satisfy the claim of O. against G. on the determination of the place of residence of the children.
To determine the place of residence of the minor S. with the mother O.
To partially satisfy the counter-claim of G. against O. on the determination of the place of residence of children, determination of the procedure of communication with children. To determine the place of residence of M., P., with the father – G.
To determine for G. the procedure of communication with the daughter S.:
- daily from 7 pm to 7.30 pm via Skype, Viber, WhatsApp, telegram;
- in the period of stay of G. in Moscow - from 2 pm to 7 pm on Tuesday, Thursday, from 10 am to 8 pm on Saturday;
- during the school holidays of S. in the period of stay of G. in Moscow - Monday, Wednesday from 10 am to 8 pm.
To oblige O. to ensure communication channels of the child with the father and not to obstruct this communication.
This procedure should be determined until September 1, 2019 taking into account the child’s activities, health and desire.
The decision can be appealed to the Moscow City Court through the Kuntsevo District Court of Moscow within one month from the date of the adoption of the decision in final form