Immigration and divorce: stories of collapsed international marriages through the eyes of a lawyer
Kidnapping? Child abduction? Or the implementation of their parent legal rights? With this column, I begin a series of stories about legitimate and illegal cases of children moving abroad. About how each parent can protect their rights. What every woman should know when giving birth to a child in another country.
History of 1. Once upon a time, a large family moved to the USA with refugee status. These were elderly parents, their adult daughter and her husband. In the United States, young spouses gave birth to two children. Despite the fact that it was not an international family and they did not have most of the contradictions that arise in international marriages, life together has cracked. The wife asked her husband’s consent for a temporary trip to Russia, and he, not suspecting something was amiss, gave his consent. Soon after, he received a subpoena in a Russian court, where his wife called in the case of divorce and determination of the place of residence of children. Despite all his efforts, the Russian court sided with his wife and satisfied all her demands. But the American court, where the husband turned in parallel, did not agree with the conclusions of the Russian court. Rather, he recognized the decision of the Russian court only in terms of divorce, and in part of the children made his decision: to return the children, to determine the place of residence of the children with their father, to recover child support from the mother.
My mother, of course, did not obey the American court decision, and did not return to America, and then the father of the children turned to me in order to establish the procedure for communication with his children in Russia. And in parallel, in the USA, he initiated a case against the parents of his ex-wife (US citizens living in the USA). The fact is that from the point of view of American laws, this woman is a criminal, and the people who help her, including financially, are accomplices in the crime. I’m not sure that it’s possible to punish such people within the framework of the criminal law system, but they can definitely be financially punished. They lost all their movable and immovable property, and also paid a huge fine. At this time, the father regularly met with children in Russia (for a father who is not deprived of parental rights cannot be denied this), arriving six times a year. And now the eldest daughter, who reached 18 years, came to him in America, and two years later the youngest son will almost certainly do the same, leaving her elderly mother alone in Russia.
On the subject: How a divorce can affect immigration status
Why people do not calculate risks is a rhetorical question. I think that the mother did not expect such a finale, having thrown all her strength into the struggle and abandoned everything: from the opportunity to ever visit the United States and any other country friendly to the United States.
History of 2. Another couple with a child decided to break up. It happens often. The mother received full custody of the common child (custodian), the father received the right to meet. At some point, the mother lost her vigilance: the father took the child more often than prescribed by the court decision, offered his ex-wife comprehensive assistance with the child, the child often spent the night with him, allowing the mother to build her personal life. Everything was perfect ... until the mother received the papers filed by the ex-husband in court ... In his lawsuit, the father demanded that the child be brought up for him, accompanying his lawsuit with tables about the time spent with him, photographs of homework done with the child, receipts about paying for extracurricular activities and training and other evidence that he is a good father and what a worthless mother she is. Of course, the manifestation of the best qualities of the father does not at all guarantee the transfer of his child to education. But her mother was frightened and could not think of anything better than to escape to London. She began to live there a calm, measured life, until a constable knocked on her door. In his hands was the decision of the American court, providing full custody of the father (and how else, if the mother fled, abandoning the fight), and the order to return the child to the United States. Mother was on the run again. She was sheltered by the Russian embassy in London, which subsequently assisted in moving to Russia. 15 years have passed since then. She still lives in Russia without the possibility of ever returning to the United States, because there she is waiting for an arrest warrant.
History of 3. The young woman decided to connect her life with an American. Their baby was born before they decided to get married. And there life gave a crack. She returned to her native Saratov. The child's father immediately appealed to the family court, which immediately issued an arrest warrant for the woman. After more than six months of negotiations, the mother agreed to return to the United States in exchange for ending the persecution. An agreement was signed, approved by an American court, and the mother and child flew to America. A rare story of a kidnapping that ended happily.
History of 4. Girl Anna lived with her husband and child in London. Both of them were Russians: the husband was on a work visa, his wife and child accompanied him on a trip in which his wife, of course, had no right to work. One fine day, the husband found his true love and filed for divorce. Contrary to his expectations, the ex-wife with the child did not return to Russia, but also found her love, which ended up in the United States. He immediately appealed to an American court with a request to return the child. Question - where? The family lived in London for a long time, but it could not be called permanent: the heroes did not have British citizenship or a residence permit, and his wife did not even have a work permit. And to return the child to Russia, where neither husband nor wife had lived for a long time, would also be strange. I was an expert in this matter, and I was able to convince the court that neither Russia nor the United Kingdom are countries of the family’s permanent residence, and the mother’s departure to America was lawful. As a result, Anna was allowed permanent residence in the United States.
History of 5. A similar story happened in a high-profile case about the export of a child from Finland. This is a well-known case; it went through all instances in Russia and was the subject of consideration by the European Court of Human Rights.
The plot of the case is as follows: a Russian who permanently lived in Finland married a Russian woman from St. Petersburg, they had a daughter. Finland (unlike the United States) does not distribute its citizenship to children born on its territory, so the girl had only Russian citizenship - because both her father and mother were citizens of Russia. When the mother fell ill, the Finnish social services preferred the father, and the Finnish court ruled in his favor. But before the decision came into legal force, the mother managed to escape with her child to Russia.
Russia and Finland are parties to the 1980 Hague Convention of the year, and the father appealed to a Russian court with a request to return the child to him. The Dzerzhinsky District Court upheld it and ordered the mother to return the child to his father within 24 hours from the date the decision entered into legal force. Fortunately, this decision was not destined to enter into legal force, for the mother of the child turned to me to protect her and the rights of the child on appeal. In the court of appeal I managed to prove that the child’s residence in Finland, although from the moment of birth, cannot be regarded as permanent, due to the child’s lack of a permanent immigration status. For a child, like a mother, a residence permit in Finland was temporary and expired at the time of consideration of the case; they did not have any citizenship other than Russian, and the decision of the Finnish court, referred to by the plaintiff, did not enter into legal force at all on the day the mother and child left Finland. The St. Petersburg City Court recognized the mother’s actions as lawful and quashed the decision of the court of first instance, and the mother and child still live in St. Petersburg.
History of 6. An equally interesting story happened in the family of the Englishman David and the Russian beauty Anastasia. Anastasia and her daughter fled to St. Petersburg from a despot husband. Initially, my husband asked me to hand over documents from a British court to his wife and represent his interests in Russia. Unfortunately, the cost of my services stopped him, and he turned to another lawyer. Her initial task was to hand over the documents to the wife of her client. Knowing her place of work, all that was needed was to watch her on her way to or from work and hand over the papers (even if the lady refused to receive the documents, they would be considered handed).
But, apparently, the proverb about a mean who pays twice is not a coincidence. Her husband’s lawyer did not bother herself with the expectations of his wife in rainy and windy St. Petersburg: she just called her and offered to meet. The reaction of the frightened woman was obvious - she immediately quit her job and disappeared, and the documents were never handed to her. Rather, the lawyer sent her documents by e-mail, but this method of delivery was not provided for by the 1965 Hague Convention of the year, which describes in detail the procedure for the international delivery of court documents.
However, this did not prevent the British court from making a decision on the return of the child to the UK, and the aforementioned lawyer from applying to a Russian court with a request to enforce a foreign court decision in accordance with the norms of an international treaty.
At this stage, the child's mother contacted me. After making sure that there was no conflict of interest in this (I never represented her husband and never advised him, but only announced the price), I took her case. From the first hearings, it became clear that the decision of the British court could not have force in Russia, since the defendant - my client - was never notified of the hearing in the UK - as mentioned earlier, my opponent was simply too lazy to wait for her on the street and pass the papers to hands limited to the direction of the email, which is void. We won. The decision of the British court not only became unenforceable in Russia - we managed to achieve its cancellation in the UK, where the procedure for notifying the defendant was grossly violated. And the mother and child legally live in Russia and travel the world without any risk.
In the next story - 7 stories - The American father also outwitted himself, although he had every chance of winning the case. His wife and child drove off to Russia, and, as is usually the case in such cases, he appealed to an American court demanding the return of the illegally exported child. As in the previous story, the papers should have been handed over to the wife personally, but the person in Russia who was entrusted with the delivery did not find the defendant, but simply waved the affidavit of service on the successful delivery of the papers, and the deal went. When the mother of the child turned to me for help, I advised her to find out if the case in America was open against her, and then we found out that the process in the USA was in full swing. She managed to prove the fictitious affidavit submitted to the court, and the case fell apart.
On the subject: What you need to know about divorce in the United States
History of 8. A similar situation occurred in the whole well-known case of Bogdan Mobly, also known as Bogdan Osipov. Despite the fact that the initial documents submitted by her husband to the court were handed to Bogdan while she was still in America, the final court decision was issued without her participation, and the decision of the American court ordering the return of the children was never served to her.
В 9 stories the mother left with her one-year-old child from her American husband and secretly filed for divorce in Russia. She received a divorce, a decision on alimony, the court left the child to her upbringing. This heroine was lucky: her kind husband never initiated legal proceedings in America, did not demand custody for the child and the arrest of her ex-wife. He wanted it good. We appealed the decision of the Russian court regarding child support and reduced their amount from ¼ of his income by a flat sum of $ 200 per month. And then a painful struggle began for the right to see the child. And when we won this fight, the defendant, who by that time had changed her procedural status to a “debtor” in the framework of enforcement proceedings, began to put a spoke in her wheels in every possible way and obstruct the execution of the court's decision, setting the child against the father and convincing him that this uncle and not his father at all. The situation continued until the bailiff issued a decree restricting her departure from the territory of the Russian Federation.
History of 10 amazing. In this story, father is a US citizen living in Russia. After the divorce from his wife, his communication with the child was quite normal, but exactly until his mother met a new man of her dreams. At this moment, she decided to make a replacement - to exclude her father from the life of the girl and add her stepfather. Two years of courts led to the obvious result - the father can communicate with his daughter, and the mother has no right to prevent him from doing this. True, as a result of this war, the child was left without an American passport (for which the mother did not give her consent) and without trips around the world to which the child was accustomed, traveling with his father to Europe, America, and Australia from birth until the moment he appeared super hero in mother’s life.
Having a unique specialization - international protection of children in case of parents' divorce and unique practice: in Russia as a lawyer and in the USA as an expert from Russia, I have hundreds of such stories in my piggy bank and can help if you have a difficult custodial situation over the child, his visits, traveling with him, etc.
The column was prepared by a lawyer, a notary public, an expert in international law Karina Duval.
You can ask your lawyer a question by mail: email@example.com or get advice by phone:
- in the USA: (212) 205-2211
- in Russia: + 7-495-662-8721
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