The primary question, when it comes to the termination of international marriages, yet remains the following one: in which country and which of the spouses the children will live with after the divorce, in what way and where will the parent living apart communicate with the children. Given that in most cases, one of the divorced spouses remains in one’s own home, and the other one returns to one’s homeland, therewith, as a rule, the children follow the fortunes of their mother.
Unfortunately, in conflict situations, children become an instrument of blackmail and threats in the hands of arguing parents. When arguments are exhausted, then it comes to the tricks “on the brink of law and lawlessness”, and at times it comes to outright abduction of children.
So, What Does the Term “International Child Abduction” Mean?
Most often, lawyers of our bureau face the illegal removal of a child from the state of his/her permanent domicile, and retention of the child against the will of the other parent. Unfortunately, the menace of remaining without the child compels one of the parents to commit illegal acts from the point of view of international family law.
For instance, mother is Russian citizen, who removes the children, for example to Russia, without father’s consent, and refuses to return the children to the homeland. In his turn, father appeals to the police or to the bodies of juvenile justice of his state for the abduction of the child.
The complexity of the situation lies in the fact that the Russian Federation laws, the children custody issues, the issues of communication with them differ from the laws of other states.
For purposes of legal regulation of issues of international abduction of children, on October 25, 1980, in the Hague, the party-states concluded the Convention on the civil law aspects of international abduction of children.
The Russian Federation, like most civilized states, is a party to this Convention. The fulfillment of its conditions has become mandatory for Russia since October 1, 2011.
Following the ratification of the Convention, the Russian Federation introduced into national legislation the provisions on the procedures for petitions of foreign nationals for the abduction of children. According to these rules, nationals of foreign states who believe that their children have been illegally removed and are being retained in the Russian Federation can file an application for the abduction of children directly with a Russian court.
Such an application is considered by the competent court of the Russian Federation, but with some specific features caused by the participation of foreign nationals in the proceedings and by a special subject of litigation itself concerning the fate of the child.
When considering such cases, the court treats, first of all, legality or illegality of the actions of one of the parents who removed the child to the Russian Federation without the consent of the foreign spouse.
Article 3 of the Convention states when the removal of a child and his/her retention are considered wrongful.
Such a removal and retention is to be considered wrongful where
- a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
A significant but not predetermining aspect in rendering a judicial decision to return a child to the state of permanent domicile or to reject the return, is the establishment by a Russian court where the child primarily resided and where the center of his personal vital interests was before the illegal removal and retention.
What can a parent face if he/she illegally removes the children from the country of permanent residence and wrongfully retains them?
If the court finds the removal and (or) retention wrongful then the rules contained in Art. 11, 12 of the Convention, oblige the Russian court to issue an order to return the child, and if less than a year has passed since the removal to Russia, this requirement is unconditional.
In this case, the parent who illegally removed the child to Russia is obliged, in the manner envisaged by the court decision, to return the child to the country of permanent domicile. The return of the child, by itself, does not terminate the custody rights of the parent who committed a wrongful act from the legal point of view. However, in most states such actions of a parent are regarded as a gross violation of the fundamentals of family law and of the child’s interests, and entail the termination of custody rights by judicial means. This is because in most cases, after an unauthorized removal of the child, the disadvantaged parent files a petition in judicial authorities and law enforcement agencies and seeks to deprive the other parent of custody or of parental rights.
How can a parent of a child – citizen of a foreign state, apply to a Russian court for the return of child?
A petition of a foreign national to a Russian court is filed according to the Civil Proceedings rules of the Russian Federation.
One must put on the petition that the lawsuit was filed on the basis of an international treaty of the Russian Federation.
The circumstances that testify to the illegality of the removal and retention of the child in Russia should be indicated as the cause of action, and it will be necessary to attach the documentary evidence confirming these circumstances. Such documents may be: certificate of marriage and child’s birth certificate, Certificate of Citizenship obtained by the child; certificate of family composition; proof of the child’s attendance of pre-school educational organizations, etc. The documents submitted to the court must meet the requirements of Russian procedural law: i.e. be translated into Russian and get legalized (for example, an apostille is issued).
It is indisputable that the Russian civil procedural law, like the similar laws of other states, contains many subtleties and specific features developed through judicial precedents. It goes without saying that only Russian lawyers practicing in the field of international family law can be aware of all the nuances of national court processes.
The lawyers of our bureau have the necessary education and experience to handle Return of Child cases or to enforce rights of access under the Convention on the Civil Aspects of International Child Abduction, concluded in The Hague in 1980.
In order to represent the interests of a foreign citizen in Russia , it is necessary to draw up a power of attorney in the name of the lawyers of our Bureau at a Consulate of the Russian Federation in your state or, in some cases, according to the rules of national law (the power of attorney must be translated into Russian and apostilled). The power of attorney may be forwarded via DHL or similar postal service.
Of great importance in resolving litigations with regard to the illegal removal and retention of children is the work of a lawyer, his ability and experience to determine the legally relevant circumstances that need to be proved during the trial, and to identify the array of evidence necessary for submission to the court.
Each situation regarding the removal of a child from the country of permanent domicile to Russia is individual, and there is no ready legal recipe as to how to win a lawsuit for the return of child. In many respects, this is predetermined by the difference in the rules of family law governing child custody rights in the countries that are parties to the Convention.
Our lawyers can give comprehensive recommendations that will help avoid in the future complicated legal problems and return the child to the country from which she/he was illegally removed.
Our recommendations which contribute to a positive decision of the Russian court on the return of child.
Firstly, in the event of an unauthorized removal of a child to Russia for permanent residence, it is necessary, within the shortest possible time, to contact competent lawyers in order to undertake a number of legal steps that will allow hereafter to protect your interests and those of your child.
It is impossible to enumerate exactly what these steps will be, since the nature of actions depends on the national legislation of the state where the child was removed from, assessment of a specific situation, including the study of a variety of factors affecting its further development. These can be immediate actions to establish custody for the child by judicial means.
Secondly, to submit an international request for the return of child through the Central Authority appointed in the Russian Federation under the Convention. It’s not worth confiding in such cases to jurists or lawyers who are not familiar with the jurisprudential features of the consideration of cases involving foreign citizens, and did not encounter the practice of consideration of cases of international child abduction.
It is necessary to remember that the legal efficacy of judicial acts is irreversible in most cases, and legal errors may be fatal.
To get a more detailed and competent piece of advice from our lawyers on international family law, feel free to call us at the phone number in Moscow: + 7 495 514 41-28.