Articles and Publications. Russian Divorce.

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My expertise concerning “Motion of kidnapping addressed to the court of Hague”

Karina Duvall

I received legal opinion concerning “Motion of kidnapping addressed to the court of Hague” by my colleague, Russian Family Attorney. I do not agree with this professional opinion.

In support of its position the Attorney attaches extracts from the legislation that, according to my professionally opinion, are not related to the pending dispute and may be used under no circumstances.

For accurate application of the substantive law rules it should be realized that the notion of custody in Russian and English has fundamentally different meaning. In the Russian language and in the Russian law custody and guardianship are introduced in relation to infants and minor children left without care of parents.

In accordance with Article 31, part 3, of the Civil Code of the Russian Federation, custody and trusteeship over minors are introduced if they do not have parents, adoptive parents, if their parents were deprived of their parental rights by the court, and if such citizens are left without parental care due to other reasons, in particular, when parents avoid parenting or protecting their rights and interests.

Accordingly, the law of the Russian Federation “On guardianship and custody” is interpreted by Attorney at Law incorrectly. In accordance with Article 1 of the above law, the above law DOES NOT cover relations of parents and their children. This federal law regulates relations emerging in view of establishment, execution and termination of guardianship and custody over minors left without parental care.

Main target of state regulation of guardianship and custody is to secure timely discovery of persons (children left without parental care) that need establishment of custody or guardianship over them, accommodation; protection of their lawful rights and interests, guarantee of execution by guardians of their vested powers.

Reference to Article 148.1 of the Family Code of the Russian Federation is also incorrect. In accordance with part 1, Ar... Read More »

PERCEPTION VERSUS REALITY

In “Notes from Underground,” Fyodor Dostoevsky, perhaps the greatest novelist, certainly one of the greatest, launched a frontal assault on enlightened rationalism and the idea of progress. Intellectuals seek perfection through reason, reducing the world to nice, neat formulas. From Notes from Underground:
Perhaps the only goal on earth to which mankind is striving lies in the incessant process of attaining, or, in other words, in life itself, and not particularly in the goal which of course must always be two times two makes four, that is a formula and after all, two times makes four is no longer life, gentlemen, but is the beginning of death.
According to Dostoevsky trying to understand our feelings is not the same as feeling them, the former akin to dying while the latter is life unfolding. The human mind he says may be more irrational than rational and we deceive ourselves to think otherwise. Reason flows from our desires and is thus self serving and manipulative. Think of Dustin Hoffman’s character in the movie “Hero.”
Dostoevsky is not alone in postulating that we deceive ourselves. Christopher Chabris and Daniel Simons in their book “The Invisible Gorilla” demonstrate that our attention to what is going on is often an illusion. We have a “striking mental blindness” to what is going on around us although we believe we take in reality completely. In their video example viewers are asked to watch a video in which two teams of players are tossing and bouncing a basketball to each other. Viewers are asked to count the number of bounce and toss passes. In the middle of the film a woman wearing a full body gorilla suit walks slowly to the middle of the screen, pounds her chest and walks out of the frame. Half of the counters viewing the film did not notice the gorilla woman because they were completely focused on counting passes.
The moral: We overrate our mental abilities and the prowess of our sensual intake systems (i.e., eyes, ... Read More »

Residence of son

Karina Duvall

Our client (for example, Ivanova) was legally married to her husband Ivanov. The marriage was registered by a registration 2000. The marriage was dissolved by the decision of the Moscowsky district court.

The parties have minor son who was born on 2001.

During the proceedings in the Moscowsky district court the parties concluded an amicable agreement Art. 2 of which is an essential condition. According to the mentioned Art. 2 “son shall reside with his mother”. The mentioned amicable agreement was signed by representatives of the parties, it was not appealed and it came into legal force. It means that the child shall follow his mother when the latter changes her place of residence.

On June 2008, Ivanova legally married U.S. citizen who permanently resides in U.S., where the family lawfully moved for permanent residence. Ex-spouses as well as their minor son are the citizens of the Russian Federation, they divorced and determined place of child's residence in the Russian court as requested by ex-husband. Ivanova decision to change the place of her residence together with the child didn’t violate either the amicable agreement signed by the parties or any applicable laws.

Pursuant to the law (Art. 63, 64 (par. 1), and 65 of the Family Code of the Russian Federation) Ivanova must take care of her child. As a custodian parent she is responsible for upbringing and development of her minor son. She must take care of his physical, mental, intellectual and moral development. She must ensure that her child goes to school. She is a legal representative of the child and protects child's rights and interests without any special authority.

Ivanova temporarily resided in France. She didn’t have a place of permanent residence in France. She wasn’t a citizen of France neither did she have a residence permit in France. According to the laws of the Russian Federation citizens of the Russian Federation are entitled to choose a place of residence in their own... Read More »

Reciprocity in International Law (continuation)

Karina Duvall

After studying the documents provided by the Petitioner I do hereby state the following in addition to the previous expert opinion:

Exhibit A. An extract from Art. 15 of the Constitution of the Russian Federation and a “comment” on par. 4 including a reference to the source (Federal Scientific and Practical Magazine “Arbitral and Civil Procedure”, № 8, 2005) is given as an evidence in the case. The name of the author of the comment is not mentioned, accordingly the court may assume that the mentioned comment is an official interpretation of Art. 15 of the Constitution of the Russian Federation.
However, if one refers to the source – Scientific and Practical Magazine “Arbitral and Civil Procedure”, № 8, 2005 – one will see the articled which is titled “Reciprocity Principle in International Civil Procedure” by Konstantin Leonidovich Branovitsky born on August 09, 1983, who was a student at the Ural State Academy of Law in 2005.
Exhibit A is nothing but a falsification, wishful thinking. “The comment” on Art. 15 of the Constitution has nothing to do with the official text of the Constitution.

Exhibit B – a “comment” on Art. 46 of the Constitution of the Russian Federation – just as Exhibit A, is a liberal interpretation of the Constitution of the Russian Federation. Part 1 of Art. 46 1 of the Constitution of the Russian Federation says that each person is guaranteed judicial protection of his/her rights and freedoms. This provision of the Constitution of the Russian Federation corresponds to Art. 398 of the Code of Civil Procedures of the Russian Federation by virtue of which foreign nationals, stateless individuals, foreign organizations, international organizations (hereinafter referred to as “foreign persons”) are entitled to apply to courts of the Russian Federation in order to protect their rights, freedoms and legal interests. Foreign persons have the same procedural rights and perform the same procedural... Read More »

DIVORCE IS ALWAYS HARD

Divorce as an emotionally taxing event, has been depicted often in literature and film. Most will think of the 1989 film,“The War of the Roses” (based on book of same name by Warren Adler), in which an ongoing vitriolic battle between Michael Douglas and Kathleen Turner turns self destructive. There is We Don't Live Here Anymore, a 2004 movie by John Curran, based on the short stories We Don't Live Here Anymore and Adultery by Andre Dubus (whose son is Andre Dubus III, House of Sand and Fog). There is Kramer vs. Kramer, the 1979 Academy Award winner with Dustin Hoffman and Meryl Streep, based on the book by Avery Corman. My favorite divorce book and movie, however, is The Accidental Tourist, novel by Anne Tyler. Marriage can end with anger, greed or the need for revenge but for William Hurt (Macon Leary) and Kathleen Turner (Sarah), far more subdued than in The War of the Roses, marriage ends with profound sadness, in loneliness and alienation. The two who love each other, both need but are unable to offer comfort to the other. They drift apart, Sarah unable to stop herself from blaming and Macon unable to start living again following an unbearable loss. Their son was shot and killed in a robbery. Sarah, a take charge person, believes that Macon “could have taken steps’ to prevent their son’s death. Macon, bearing some guilt, withdraws from life, writing a series of books for reluctant travelers called The Accidental Tourist. In a sense we are all accidental tourists subject to the whims of life’s exigencies. Macon’s life reignites accidentally with the help of a quirky, dog training woman (Geena Davis), with a young son, who draws him out of his shell. Read the book and learn why Anne Tyler is said to make one laugh and cry at the same time. That is also my regular reaction to reading the Internal Revenue Code.
HARD TIMES DIVORCE
Divorce can also be financially taxing and the tax consequences, if not understood, will add to that distress... Read More »

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