International divorce: how to divide custody of a child if the parents are citizens of different countries

Love knows no boundaries, can cross oceans, etc. We have all heard and even seen this. International marriages are the norm of modern life. But not all of them end with a happy ending. Often, love that has overcome boundaries cannot overcome everyday life, differences in characters and other troubles - and the marriage breaks up. Filing an international divorce is more difficult than dissolving a marriage of citizens of one country, but in this case it is even more difficult to divide custody of a child. This painful issue interests many of my clients, so I decided to analyze everything in detail.

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Which side do the courts take?

Disputes about children are always very difficult and painful. Courts—Russian, American, and any other—all other things being equal, usually take the side of their citizen.

We all know the non-dual citizenship rule, which means that a person who has two or more citizenships at the same time is considered by the respective country solely as its citizen.

Therefore, when a Russian court considers a case concerning a child who is a citizen of Russia, it is difficult to expect that the decision will be made in favor of the American dad. And vice versa, if the case is considered in a mirror way in the USA, then the result will most likely also be a mirror image, at least if the child lives in the US.

Therefore, before deciding to marry a foreigner and give birth to a child in another country, every woman must answer herself the question: does she want to stay with the child in this country in the event of a divorce?

In the court of which country should custody be determined: in the homeland of the mother or father of the child

The correct jurisdiction for child disputes is the child's place of permanent residence. However, “domicile” is defined differently by the laws of different countries.

All the states of America have agreed that the place of residence of the child is the place of his permanent residence during the last six months. In Russia, the place of residence is traditionally understood as the place of permanent registration. Often, many families live in several jurisdictions at the same time, travel, change cities and countries.

Therefore, it is not always possible to correctly define jurisdiction, and even in such a way that both parties recognize it. This leads to the fact that sometimes the decisions of the courts are issued in parallel in different jurisdictions. At the same time, it should be remembered that the main conventions aimed at protecting children (the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Jurisdiction and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children) do not work in relations between Russia and the United States. Therefore, the hope that states will agree on jurisdiction, on the applicable law, on the return of the child to his place of permanent residence, is negligible.

Citizenship of the child and its impact on custody

The nationality of a child has little effect on custody rights. If a child is born to parents who are citizens of the Russian Federation, then he acquires Russian citizenship by birth, even if the child's parents refuse to issue him a Russian passport. With different citizenship of the parents, the child acquires the citizenship of the Russian Federation by birth in two cases:

• if this child was born on the territory of the Russian Federation;
• if he was born in a family with a single parent who is a citizen of the Russian Federation.

At the same time, it does not matter legally whether the parents/sole parent want to issue a Russian passport for the child or completely deny the child’s Russian citizenship - the child has Russian citizenship by virtue of the direct instructions of the law, and the absence of a passport does not affect this in any way.

With different citizenship of the parents and subject to the birth of a child abroad, a child can acquire Russian citizenship at the request of a parent who is a citizen of the Russian Federation (with the consent of the other parent). If there is no such consent, the child can obtain Russian citizenship provided that he lives in the Russian Federation.

This means that if a Russian mother moves to the Russian Federation with an American child, Russia will grant the Russian citizenship to such a child even in the absence of the consent of the other parent.

And of course, if the child lives on the territory of the Russian Federation and is granted Russian citizenship, it is difficult to expect that in the event of a dispute, the Russian court would take the side of the American father.

However, this rule cannot be extended to all international families and to all foreign fathers. With many countries, Russia has international treaties in force that allow the return of a child to a foreign jurisdiction in the event of a dispute.

The concept of child custody is interpreted completely differently in Russia and in the United States.

In Russia there is no joint custody of parents. There, the very concept of “guardianship” has a completely different meaning than in the United States. In the United States and many other countries, custody rights belong to the parents. In Russian law, the word “guardianship” has a fundamentally different meaning. This is a form of placement for young children left without parental care. The word “custody” does not apply to parents. In Russia, it is declared that both parents have equal rights, although in practice, in the event of a divorce, the child, of course, remains to live with only one of the parents, and the second has the right to communicate with the child and the obligation to pay alimony.

On the subject: How to translate important documents correctly so that they are accepted by government agencies in the United States or in the immigrant's home country

International Alimony

The law allows you to collect alimony in any jurisdiction, both at the place of residence of the mother (say, in Russia) and at the place of residence of the father (say, the USA). In this case, it is advisable to apply to the court of the jurisdiction where the decision will ultimately be enforceable.

That is, if the father lives in America, then it makes sense to apply to the court of the state where he lives, and the SCU (Support Collection Unit) will control the execution of the court decision by him. It makes little sense to go to a Russian court in such a situation, although many do. An unenforced decision of a Russian court may prevent a foreign father from leaving Russia without paying the debt, but it is difficult to frighten a foreigner who did not intend to come to the Russian Federation with these sanctions.

Some women use the fact that the father did not comply with the court decision as an argument for the subsequent deprivation of the father of parental rights, which gives women a certain freedom in making decisions regarding the child. But if the purpose of collecting alimony is to receive alimony, then they must be collected in the jurisdiction of the debtor's residence.

It should also be understood that it is not always possible to enforce a foreign court decision in the United States. But even when possible, the local court may significantly modify the original court order.

Parental "abduction" of a child

If a young woman/man from Russia decides to connect her life with an American citizen and have children with him/her, she/he must clearly understand that this is a “one way ticket”. Not every parent will give his consent to have his child taken away from him forever to another country in the event of a divorce.

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Therefore, most likely, you will have to come to terms with this and stay to live in America, respecting the law, or take the child away despite the objections of the other parent, which is fraught with trouble (but not always). Here you need to understand that if the American parent does not immediately take active legal action, then, most likely, everything will remain the same, and the Russian parent will be able to stay “at home” with the child without negative consequences for themselves. But an American parent can go to court and Interpol with all the negative consequences arising from this fact.

Therefore, there is only one recommendation - the decision to live abroad should be balanced with an understanding of the prospects and possible legal consequences.

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