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Forum non-convenience

KARINA DUVALL, being duly sworn, deposes and says:

1. I am an attorney admitted to practice law in the Russian Federation in 1999. I have over 15 years of high-level experience in the Matrimonial, Family and Civil Law of the Russian Federation as well as in International Law.

2. I am certified legal consultant from Russia.

3. I have high qualifications in Russian and International law. I’ve practiced law and appeared in courts in Russia and abroad as a barrister and legal expert in Russian law, including the Supreme Court of Kings County (New York), State Los Angeles Superior Court (California State), Circuit Court for Baltimore City (Maryland State), Guernsey County Common Pleas Court Domestic Relations Division, Ohio State, in the Family Justice of the Republic of Singapore, the High Court of the UK, High Court of Netherlands and other. This background allows me to fully understand international and multi-jurisdictional cases.

4. I am often called upon to testify in United States and Canadian courts as an expert on Russian law. My clients are individuals of all nations who need expertise in Russian law. I specialize in Family and International Private Law and my area of expertise is complex multi-jurisdictional family and matrimonial cases.

5. I have personal knowledge of the facts hereinafter deposed to except where those facts are stated to be based on information and belief, in which case I verily believe the same to be true.

6. Respondent explained that the Petitioner is seeking his parental rights and custody for the child through U.S. court order.

7. The child was born on 2015. According to Certificate of Birth, the mother is a single parent. DNA test was never done and the child, a Russian National, was never confirmed to be the child of Petitioner.

8. Respondent-mother has sole Russian citizenship and she is a single parent. Petitioner – potential father – has sole Russian citizenship. Both parties have temporary immigration status in the United States.

9. No petition for custody or complaint has ever been filed by Petitioner through Russian Authorities. As Russian citizen Petitioner at all times remain the right to establish his paternity and custody through Russian Authorities.

10. No petition for custody or complaint has ever been filed by Petitioner through U.S. Authorities until May 2015. He was fully agreed that mother has sole custody by default, and the child is legal resident of Russian Federation.

11. According to the Art. 162 of the Family Code of Russian Federation, the establishment and the disputing of paternity shall be defined by the law of country of state where child has citizenship by birth. The child has Russian citizenship by birth according to the Art. 12 part 1 “a” of the Russian Citizenship Rules, which said:

A child acquires the citizenship of the Russian Federation by birth, regardless of the place of birth of the child, if both parents or child’s single parent have the citizenship of Russia.

12. The birth record was made according to the Russian law.

13. The child was registered in St. Petersburg, Russian Federation, on 2015.

14. The court may also consider that both parties to the action are nonresidents of the U.S.A. All parties to the case, Petitioner, Respondent, and the child are citizens of Russian Federation.

15. Further, according to art. 20 of the Civil Code of Russian Federation, the place of residence is the place where person permanently or predominantly lives. The place of residence of minors under fourteen is the place of residence of their parents.

According to the Apr 29 part 3 of the Civil Procedural Code of Russian Federation, Petitions for establishment of paternity can be filed by Petitioner to the court in the place of Petitioner’s residence.

These provisions are comparable to the “Uniform Child Custody Jurisdiction and Enforcement Act". The Russian courts has sole jurisdiction over this child since the child lives permanently in Russia for years.

16. In addition, the child has Russian citizenship according to art. 12 part 1 “a” of Russian Citizenship Rules. She spent most of time in her life in Russia, in the sole care of her mother.

18. According to my knowledge and experience, when more than one venue is legally proper for the trial of a case, the possibility of transferring the case from less convenient, albeit legally proper, forum to a more convenient forum has been a part of law. On motion of any party, the court may transfer any action to any other court where the action might have brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.

19. I reviewed all documentation and confirmed that the first step required will be gaining a Russian court order to have Petitioner’s name put on the Russian child's birth certificate. Even if no dispute between parties over paternity exists, the father cannot move forward with custody issues without establishing of paternity with Russian Authorities. American court should not have jurisdiction over parties or child. It is sole jurisdiction of the Russian Federation.

-- The most time of the life, the child lived in Russia solely with her mother and maternal grandparents.

-- All parties are citizens and permanent residents of Russian Federation at this time.

-- Petitioner, Respondent, and the child does not have secured permanent residency in the U.S. at this time.

-- All extended family members of Petitioner, Respondent, and the child reside solely in Russia.

-- The child has been raised in Russia and shall not be deprived from her culture of origin and ties to extended family and friends in Russia.

-- The procedure for the establishment and the disputing of the paternity shall be defined by the legislation of the Russian Federation. In the cases, when the Russian law admits the establishment of the paternity at the Vital records offices, the child's parents, living outside of the territory of the Russia, shall have the right to turn with applications on establishing the paternity to the Russian authorities.

-- The Petitioner never submits his application to the Russian authorities.

20. Matters of custody shall be resolved according to the personal law of the individual. According to Art. 1195 of the Civil Code of the Russian Federation, the personal law of individual shall be considered the law of the country of nationality of such individual. If an individual, along with Russian nationality, also has a foreign nationality, his personal law shall be Russian law. If an individual has several foreign citizenships, the personal law shall be considered the law of the country in which such individual resides.

21. It appears that any evidence and the majority of the witnesses regarding the custody are located in Russia. Discovery will thus necessarily involve the lengthy process of obtaining extensive documents from Russia, without the aid of this Court's subpoena power, and arranging for certified translations of said documents. Accordingly, Russia is the most appropriate forum for resolving the issues of custody and paternity.

22. Applied to this case, this action for child custody supposed to be dismissed the doctrine of forum non-convenience on the ground that the Court in St. Petersburg, Russia is a more appropriate forum, since USA is clearly not the “home state” of the child. Therefore, Petitioner's action must be dismissed to the extent that he seeks an award of custody herein.

The great advantage of the rule of forum non-convenience is its flexibility based on the facts and circumstances of each case. The rule rests upon justice, fairness and convenience... (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-480 (1984).

23. According to the Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The competent court which has jurisdiction over the parties is only Russian court only. Since Respondent is legally a single mother, parties cannot open any custody dispute either in Russia or in United States.

24. Thus, if both parties and the child are of Russian nationality, protection of rights, including establishing of paternity, custody, and etc. shall be carried out according to the Russian laws.

25. According to Art. 2 of the Family Code of the Russian Federation, family laws establish the procedure of exercise and protection of family rights, non-property relations between parents and children.

26. According to Art. 4 of the Family Code of the Russian Federation, personal non-property relations between family members referred to in article 2 of the Family Code of the Russian Federation, which are not settled by the family laws (article 3 of this Code), shall be governed by the civil legislation, to the extent not contradicting the essence of family relations.

27. By virtue of Art. 1199 of the Civil Code Russian Federation, guardianship or custody over minors, full age persons that are legally incapable or limited in capacity to act, is established and cancelled under the personal law of the individual concerning whom guardianship or custody is established or cancelled. The duty of the guardian (custodian) to accept guardianship (custody) is determined by the personal law of the individual designated as the guardian (custodian). The relations between the guardian (custodian) and the person who is subject to guardianship (custody) are determined by the laws of the country, the institution of which had appointed the guardian (custodian). However, if the person under guardianship (custody) resides in the Russian Federation, Russian law shall apply if it is more favorable for such person.

28. To obtain rights to open legal action about child custody, the Petitioner shall to collect and prepare all documentation required in order to submit to the court in St. Petersburg, Russia to have a court order in place for thePetitioner to be the registered father on child’s birth certificate. For a party to be registered with ZAGS in Russia, only the Russian courts can order this to be enforced legally.

29. If the paternity court orders for Petitioner to be registered as the father on child’s birth certificate at a local ZAGS, the Petitioner becomes qualified for applying for custody hearing in Russia or in other State.

Karina Duvall
Articles and consultations authored by attorney reflect the state of law as of the date of their writing. The laws change daily. Users of this site are advised to consult attorney regarding their situation.
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