DIVORCE

Answer:

As a have already mentioned a few times, the law expressly provides that a child may leave abroad together with one of the parents. According to the amicable agreement the child lives with the mother. Therefore no special permit was required. Mother was acting within the authorities given to her by the laws and the amicable agreement.

The amicable agreement doesn’t contain any provisions according to which the child shall reside at a certain address. Child’s place of residence is his mother’s place of residence, wherever it is.

Karina Krasnova

Answer:

As I have already mentioned in the previous reply, a minor citizen of the Russian Federation leaves the Russian Federation together with one of the parents according to Art. 21, 22 of the Law of the Russian Federation "Procedure for Departure from and Entry in the Russian Federation". The amicable agreement doesn’t change or cancel the procedure established by the Law. Thus neither the Law nor the amicable agreement provides for father’s consent for departure of the minor citizen of the Russian Federation from the Russian Federation together with his mother.

Karina Krasnova

Answer:

2. Father’s participation in child’s upbringing is regulated by the amicable agreement. Father has no right to demand return of his ex-wife and child to Russia. A right to choose a place of residence is a personal right of a citizen. The parent with whom the child actually lives is entitled to take decisions related to the child unless otherwise provided for in the agreement. The amicable agreement contains no restrictions of limitations of that kind.

When considering a case about a place of residence of a minor child, a court decides whether the child shall live with the mother or the father but it doesn’t determine child’s address after divorce of the parents. In this case the child follows the mother when she changes her place of residence and father’s consent is not required.

Karina Krasnova

Answer:

1. According to Art. 27, part 2 of the Constitution of the Russian Federation any person may freely leave the Russian Federation. Art. 15 of the Law of the Russian Federation "Procedure for Departure from and Entry in the Russian Federation" provides for limitation of the RF citizens’ right to leave the Russian Federation. The list of the limitations is exhaustive. An RF citizen’s right to leave the Russian Federation may be temporarily limited in case the citizen:

1) has an access to state secrets;
2) has been called up for military service or civilian substitute service pursuant to the Laws of the Russian Federation;
3) has been detained on suspicion of having committed a crime or has been put on trial as an accused;
4) has been convicted of committing a crime;
5) evades obligations imposed on him/her by court;
6) has provided knowingly false information when executing the documents required for leaving the Russian Federation.

Art. 20, 21 of the abovementioned law establish a procedure for departure of minor citizens of the Russian Federation. As a rule, a minor citizen of the Russian Federation leaves the Russian Federation together with at least one of the parents. A court decides whether a minor citizen of the Russian Federation may leave the Russian Federation in case one of the parents protests against child’s departure.
Such protest shall be expressed by submission of a relevant claim PRIOR to departure of the minor child. There are no obstacles to departure of a child together with the mother if there is no father’s written protest.

Thus a special permit for departure of a minor child from the Russian Federation is not required. The law expressly provides that a child may leave abroad together with one of the parents and that is sufficient to leave the Russian Federation. Father’s consent is not required by the Law.

As the mother is a custodian parent according to the court decision she is entitled to take the decision about the child’s departure from the Russian Federation and she is responsible for life, health, protection of rights and legal interests of her minor son abroad.

Karina Krasnova

Answer:

As a have already mentioned a few times, the law expressly provides that a child may leave abroad together with one of the parents. According to the amicable agreement the child lives with the mother. Therefore no special permit was required. Ms. Drozdova was acting within the authorities given to her by the laws and the amicable agreement.

The amicable agreement doesn’t contain any provisions according to which the child shall reside at a certain address. Child’s place of residence is his mother’s place of residence, wherever it is.

Karina Krasnova

Answer:

As I have already mentioned in the previous reply, a minor citizen of the Russian Federation leaves the Russian Federation together with one of the parents according to Art. 21, 22 of the Law of the Russian Federation "Procedure for Departure from and Entry in the Russian Federation". The amicable agreement doesn’t change or cancel the procedure established by the Law. Thus neither the Law nor the amicable agreement provides for father’s consent for departure of the minor citizen of the Russian Federation from the Russian Federation together with his mother.

Karina Krasnova

Answer:

Father’s participation in child’s upbringing is regulated by the amicable agreement. X-husband has no right to demand return of his ex-wife and child to Russia. A right to choose a place of residence is a personal right of a citizen. The parent with whom the child actually lives is entitled to take decisions related to the child unless otherwise provided for in the agreement. The amicable agreement contains no restrictions of limitations of that kind.

When considering a case about a place of residence of a minor child, a court decides whether the child shall live with the mother or the father but it doesn’t determine child’s address after divorce of the parents. In this case the child follows the mother when she changes her place of residence and father’s consent is not required.

Karina Krasnova

Answer:

1. According to Art. 27, part 2 of the Constitution of the Russian Federation any person may freely leave the Russian Federation. Art. 15 of the Law of the Russian Federation "Procedure for Departure from and Entry in the Russian Federation" provides for limitation of the RF citizens’ right to leave the Russian Federation. The list of the limitations is exhaustive. An RF citizen’s right to leave the Russian Federation may be temporarily limited in case the citizen:

1) has an access to state secrets;
2) has been called up for military service or civilian substitute service pursuant to the Laws of the Russian Federation;
3) has been detained on suspicion of having committed a crime or has been put on trial as an accused;
4) has been convicted of committing a crime;
5) evades obligations imposed on him/her by court;
6) has provided knowingly false information when executing the documents required for leaving the Russian Federation.

Art. 20, 21 of the abovementioned law establish a procedure for departure of minor citizens of the Russian Federation. As a rule, a minor citizen of the Russian Federation leaves the Russian Federation together with at least one of the parents. A court decides whether a minor citizen of the Russian Federation may leave the Russian Federation in case one of the parents protests against child’s departure.
Such protest shall be expressed by submission of a relevant claim PRIOR to departure of the minor child. There are no obstacles to departure of a child together with the mother if there is no father’s written protest.

Thus a special permit for departure of a minor child from the Russian Federation is not required. The law expressly provides that a child may leave abroad together with one of the parents and that is sufficient to leave the Russian Federation. Father’s consent is not required by the Law.

As the mother is a custodian parent according to the court decision she is entitled to take the decision about the child’s departure from the Russian Federation and she is responsible for life, health, protection of rights and legal interests of her minor son abroad.

Karina Krasnova

Answer:

I have analyzed the documents, received from you and the decision of the court, clarifying everything, which was not clear before. By the decision of district court of Moscow, dated 2008, your wife and your son were taken off the registration books at the place of residence as the result of the claim, received from your wife’s ex-mother-in-law, who is evidently the owner of the apartment in Moscow. First of all, what is necessary to do in this situation is to get the court decision from district court.

After you receive the decision of the court, your wife and your son can complete taking off the registration books. After getting the certificates of departure (documents, confirming the fact of taking off the registration books in the Passport office of their latest registration place in Moscow), the stamp about departure will be put in your wife’s passport.

When your wife and child get certificates of departure, they can easily get registered at the Russian consulate in USA. Residence in United States and absence of a residence in Russia will serve as the basis for registration at the Russian consulate in USA. Internet does contain enough information about Russian Consulate in USA, the rules of registration in Russian Consulates abroad are the same in all countries, because the Russian Consulates in all countries report to the Ministry of Foreign Affairs of Russia.

After you wife and your son register in the Russian Consulate in USA, they will be able to submit to the Consul official application with the request to change the name. Consulates abroad serve as Civil Registry Offices in Russia, and they have to make all the actions and formalities to solve your situation. But this should happen only after the registration at the Consulate in completed.

You can choose another option. Without showing the information about taking off the registration books you can submit to the Civil Registry Offices of Moscow application with the request to change the name. However, when you apply to Civil Registry Offices, you have to show them the decision of court, confirming deprivation of parental rights, from which it is vivid, that the registration at the place of residence was cancelled. This can be a reason for refusal.

If you have additional questions or you require practical help in respect of getting certificates of departure or in representation of the interests of your family in the Russian consulate I will be happy to give you my assistance.

Karina Krasnova

Answer:

If your child was born in the territory of Russian Federation, he would receive Russian citizenship by birth because his mother is a Russian citizen. If the child was born abroad, he would be able to receive Russian citizenship only by your consent. In this case your consent would be required only in the event when you are officially recognized as father of the child. To get the citizenship of India for your child you can according to the laws in your country. Russian legislation does not forbid having two citizenship. You can get paternity not necessarily being married. For this you need to address to ZAGS (Vital Records Office) with child's mother and file a joint application. If child's mother does not want to specify you in the birth certificate, in this case you can establish paternity only by court decision. It is not a violation of anything if a child was born out of wedlock. Registration of marriage is absolutely voluntary matter.

Karina Krasnova

Answer:

The residence registration procedure, which had existed in the Soviet period, is still operating in the Russian Federation, and traditionally it implies the place of residence of a citizen. Though the parties lost their ties with Russia nearly 20 years ago, the fact of having residence registration, enables them to apply for judicial protection to the Russian courts, where the parties neither reside nor work, they do not perform any tax liabilities, they apply to the country which is NOT the center of their fundamental interests. The applications to Russian courts have become a trend for many of our former compatriots, who are trying in such a manner to avoid responsibility.

However we, lawyers, do understand that due to non-availability of above mentioned treaty between the USA and the Russian Federation on rendering legal assistance in civil cases, any judgment made within the Russian Federation will not be subject to execution within the USA. It would be just a declarative act not binding on the US competent authorities. This judgment will not stand good in law within the USA until a US competent court makes its own decision according to the procedure prescribed by the law based on the petition of concerned party for acknowledging and execution of the judgment of a foreign court.

Furthermore, the ability of the Russian court to collect evidence available within the USA seems to be more than doubtful, since absolutely all evidence in the case can be found within the USA. Due to non-availability of twice mentioned treaty between the USA and the Russian Federation on rendering legal assistance in civil cases, the competent authorities of Russia have no real possibility to call for and carry out objective investigation of evidence submitted from abroad.

It is obvious that the real reason of this weird suit being filed in another country is an attempt to stand against the American justice. An unfair party by its wrong acts tries to hinder the consideration of lawful claims by the American court.

In my opinion, the suit of my client was admitted for consideration by American court pursuant to the jurisdiction requirements, and there are no obstacles for its lawful consideration. The USA and Russia are not connected with each other by any bilateral treaties preventing the consideration of the case within the USA. In addition, due to health reasons my client is unable to participate in court cessions in Russia. Her husband is also unable to be there, taking into account the schedule of his classes and intensity of work. Furthermore, not only property relations of the parties are the subject matter of the case, but also personal non-property relations between the parties, which cannot be considered correctly without direct personal participation of the parties in the court proceeding. On top of that, the court is obliged to interrogate the child, who is over 10 years old and must express his opinion on the essence of submitted claims.

All these factors on aggregate make the consideration of this case by any Russian court impossible. On the ground of above stated and taking into account the non-availability of international treaty between the USA and Russia, I believe it possible to consider the presented claims separately from the proceeding taking place in Russia.

Karina Krasnova

Answer:

The first thing you have to do is to apply to the court claiming maintenance for support of the child and yourself. You are entitled to receive your maintenance until the child will become 3 years old. The child is entitled to receive its maintenance until coming of full age. Avoidance of maintenance payment for more than 6 months will enable you to apply to the court claiming termination of parental rights and/or adoption of your child. Termination of parental rights will be the best solution for you, but currently it is impossible due to two reasons:
1) maintenance has not been claimed in a judicial procedure;
2) father renders material assistance and participates in the child’s upbringing voluntarily.

Therefore the option available in your situation is to apply to the court claiming the determination of residence of mother and her child. If the court states that the child must live with the mother, then in case of change of mother’s residence, the child will follow her. If the father is adequate, you may make an agreement within this case limits as regards the procedure for exercising of parental rights, thus defining the place and time of his meeting with the child, maintenance payment procedure and his participation in other types of assistance.

Strictly speaking, К-1 and К-3 visas are non-immigration visas, you don’t have to execute permanent place of residence when going outside the Russian Federation. So you can leave Russia without any hindrance, unless your husband notifies the border control authorities about his objection. If it happens you will have to receive permit for going abroad in a judicial procedure.

As long as he formally does not state his forbidding the child’s going abroad, you may leave the Russian Federation without hindrance, as I mentioned above. In this connection it very important to understand which formulation of the Russian court ruling will be satisfy the consulate for issuing a visa for going to USA, and which documents, apart from the court ruling will be sufficient for obtaining entry visa to the USA.

The periods of case consideration by the court are different. You should keep in mind 6-8 months for consideration of the case on determination of residence of mother and her child.

Karina Krasnova

Answer:

According to the article 90, 91 Family Code of Russia, disabled indigent ex-spouse who has become disabled before the divorce or during 1 year from the moment of divorce, also indigent spouse who has reached retirement age, has the right to demand the assignment of alimony from ex-spouse in court’s order.

The size of alimony and the order of their assignment to ex-spouse after the divorce can be specified by agreement between ex-spouses.

If the agreement of payment is absent between spouses, the size of alimony exacted from ex-spouse in court order is determined by the court proceeding from the material and marital status of ex-spouses, and other interest that deserve consideration of sides in stable sum of money that has to be paid monthly.

You can divorce in the territory of Russia, and your wife can demand alimony only in case of inhabitancy in Russia. Foreign citizens that are situated in the territory of Russia temporarily are not entitled to divorce and demand alimony according to the law of Russia Federation.

If you are entitled to divorce according to the law of Russia Federation, then the procedure of divorce will get near 3 months. I can present your interests in your case.

Karina Krasnova

Answer:

1) As I know Family law in the US ties the opportunity to file an alimony and divorce suit to court with required residence in territory of the state.

2) If you will sign a contract, this contract will be obligate to you independent from your place of residence.

3) If the decision of the court about the action of alimony exaction is completed in the territory of one of the states, then reconsideration of this case is not required. In this case you have to present the decision of Russian court to performance to the appropriate court of the USA. The decision of foreign courts must be compulsory performed, if there are no disagreements between the rules of national and foreign laws.

Karina Krasnova

Answer:

In my opinion, the child birth will not repel at the prospects of divorce with your wife. You can ask the court to accelerate the legal investigation because of necessity to marry again and the pregnancy of your girlfriend. However, if the divorce is mutually agreed, this petition has no sense.

Karina Krasnova

Answer:

If I understand you correctly, the child birth will not influence on the divorce with your ex-spouse and on the opportunity to exact alimony from you to maintain her.

Karina Krasnova

Answer:

Nobody has a priority. According to the force of Russian law, you must maintain your child until he/she will be 18 years old (article 81 Family Code of Russia) and your ex-spouse if she has become disabled during your marriage. The mother of your child also can be entitled to get alimony during her pregnancy and until the child will be 3 years old, providing you will marry her according to the law.

Karina Krasnova

Answer:

I as I have already told you, it is possible only with the child`s mother`s consent. If the mother objects, the court is most likely to keep the child`s permanent residence in Russia`s territory, acting in the interests of the child, Russia`s citizen. If both parents agree that the child should have his registration withdrawn in Russia, the court will have no reasons for rejecting. However, we cannot do this without applying to court, since the general rule says that withdrawal of the child`s registration is possible only together with withdrawal of either of his parent`s registration, since the child cannot exit alone. That is why we cannot do without court. In order to chose the only right attitude in respect to the case I need to see copies of documents of title to the apartment and certificate of form # 9 (certificate of place of residence).

I will prepare all papers for you, if necessary, The main thing for you is to agree with your wife on the basic issues of your further life and your child`s life. You can get back to the issues being discussed at any time, convenient for you.

Karina Krasnova

Answer:

It is quite obvious that an agreement that you and your wife will reach at as to the issue of participation in the child`s life, should strictly comply with the rules of Russian, Belgian and international private law. An agreement shall meet the parties` interests, and, above all, the child`s interests. I drew up a hundred such agreements that are used all over the world. If necessary, I will make such an agreement for you.

Karina Krasnova

Answer:

In order to be able to restore himself in the register of birth your husband will have to apply to court with relevant claim: this will require separate court proceedings.

Making forecast of development of your situation, we may assume that in reply to your application for dissolution of marriage he may submit a counter claim on establishment of paternity and order of communication with his child. You may oppose against such claim, because establishment of paternity does not constitute a part of questions investigated by the court during dissolution of marriage (pursuant to Article 24, Part 2 of the Marriage and Family Codes of the Russian Federation, during consideration of case on dissolution of marriage the court should determine, in particular, with which parent the infant children will live after divorce; from which parent and in what amount alimony should be collected to support their children).

Besides, you are resident of New York and have the right to dissolve marriage pursuant to the law of New York: it will be much more difficult for him to make claims in American court, than in Russian court.

Establishment of paternity, amendment of register of birth will require mandatory individual judicial trial, which will not intercross with proceedings on dissolution of marriage. Thus, you (represented by your lawyer) will have the right to insist on dissolution of marriage without determination of issue re: children, because this question may not be solved by the court within the framework of proceedings on dissolution of marriage.

The issue of establishment of paternity or amendment of register of birth (both ways are legitimate from the point of view of the Russian law) will be difficult to solve, because your daughter was born abroad: in the country, which has its own legislation and with which Russia does not have an agreement on legal aid. It is obvious that, being actually father of your child, he will be able to prove it, but he will have to prove these circumstances not in Russian, but in American court, pursuant to the law of New York, where your daughter was born.

And only when he is stated in the birth certificate, he will gain the rights (and, consequently, obligations) of the father. You will be able to claim for collection of alimony in the due course, and he will be able to claim to ensure his ability to see his child.

It is his right to claim for delivery of child in care of the father. Prospects of such claim are doubtful. Besides, this case does not fall under jurisdiction of the Russian court, because the child does not have (and it seems that did not have) place of residence on the territory of the Russian Federation, and was born on the territory of a foreign state. In case of submission of such claim to the Russian court I would consider it appropriate to oppose against jurisdiction. Besides, as was stated above, there is no agreement on legal aid and on mutual recognition of court decisions between Russia and the United States, that is why I find it expedient and even necessary to file such claim on the territory of USA. Considering legality of your stay in USA, birth and actual living of your child during all her life on the territory of USA, American citizenship of your child, I do not think that American court will give preference to Russian father. But in any case such proceedings, if any, will be rather long: your marriage by that time will surely be terminated.

The most probable course of events, which I see:
1) dissolution of marriage;
2) restoration of your husband in birth certificate of the child;
3) claim on delivery of child in care of father, the most probable outcome of which will be determination of order of communication with the child – voluntarily or by enforcement. Your husband will have unconditional right to see his daughter, especially if he fulfils his obligations before his child – in particular, pays alimony. There are minimum chances that the court will make a decision on delivery of your child in custody of your husband. He may not claim that you return to Russia.

As a rule, if parents may come to an agreement, I make a draft agreement for them on order of execution of parental rights by parent, who lives in separation with his child. However, if parents cannot come to an agreement, they often come to an agreement in court, or the court makes schedule of meetings for them. I believe that this is maximum that your husband may achieve.

Karina Krasnova