A Russian citizen, Olga Pimanova, was recently arrested in Cook County, Illinois on charges of civil contempt that stemmed from a custody battle between her and her ex-husband, Jorge Castillo, a U.S. citizen.
Pimanova reportedly arrived in the U.S. with her Russian-born infant, Arianna, where she soon after met Castillo. The couple married shortly after. At some point at the end of their relationship, but prior to any decree of divorce, Pimanova left the country with Arianna. Castillo filed for divorce, where he was found to be the father of Arianna and Pimanova was ordered to bring the child back to the states.
Pimenova returned to the U.S., but without her daughter and was immediately arrested upon landing in Chicago. Pimanova claims Castillo is not the child’s father and that she never received notice of the divorce filing. However, case activity from court records show that when Castillo filed for divorce, he provided notice of his petition via publication, presumably because he was unaware of her whereabouts. Although numerous publications were made regarding case status, it appears Pimanova never participated in the divorce proceedings until after the divorce was granted and Castillo was given custody rights.
Conflicting laws between Countries
It’s not surprising Russian officials are upset about Pimanova’s arrest, as cross border disputes between the U.S. and Russia aren’t a new topic—Russia has recently passed laws (2012) banning all adoptions between Russian children and American parents.
In the U.S., notice via publication is appropriate in circumstances when no other alternative is available and the petitioning party has no known information about the responding party’s whereabouts. The Chicago court found Arianna to be Castillo’s daughter and as a result, awarded him custody rights. With Russia’s attitude towards their young children being handed over to Americans, it begs the question of whose law controls here?
The Hague Convention
When jurisdictional disputes arise here in the U.S., we have what’s known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act grants jurisdiction in child custody cases to whichever state is the child’s “home state.” Unfortunately, this only applies to states within the United States, which means it doesn’t apply in foreign disputes. However, when a custody dispute arises and one parent decides to remove the child to another country, parents can invoke the protections under The Hague Convention, which applies the same basic principles as the UCCJEA.
The Hague Convention is a treaty developed to provide a method for return of a child that was internationally abducted by a parent from one country to another. The treaty’s primary purpose is to preserve the status quo for the child, which means returning them to whatever country was their “habitual residence.” Although the treaty only applies to children under the age of 16, it’s meant to act as a deterrent for parents looking to cross international waters for the purpose of seeking a more sympathetic and favorable court.
Home State Advantages
The treaty doesn’t provide substantive custody rights, but deals primarily with procedural and jurisdictional aspects of judicial proceedings that must take place in order to return the child to their home country. Generally, wherever is considered the child’s home state is going to have controlling authority, but there’s a process that parents must go through in order to determine that home state advantage.
If there’s been a violation of custody rights, a parent must file with their own local court to invoke The Hague Convention. When a child is brought into the U.S. from another country, the case is handled here in the U.S. at the state or federal level—petitioners have the option to choose. If the child is taken from the U.S., a case would have to be filed and heard in the locality where the child was taken, which would require hiring a local attorney familiar with their country’s custody laws.
If both countries, the parent invoking the Convention and the country where the child is located, are signatories, the case will be heard and a parent must prove the child was a “habitual resident” of that country. In order to qualify as a “habitual resident,” a child needs to have lived primarily in that country prior to being removed. In determining habitual residency, courts will look to the shared intentions of the parents, the history of the child’s locations and residences, and the settled nature of the family prior to the removal/retention. A parent must further prove that the child was wrongfully removed to another country.
The United States and Russia, among 92 others, are both on the list of signatory states party to the convention. Although Arianna was born in Russia, it appears she was primarily living in the U.S. prior to her removal. It will be interesting to see how Russia responds and if their actions will be contrary to the Hague Convention.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law