Friday, Feb. 6, 2004.
U.S.-Russian Couple Fight for Kids in CourtBy Daniel J. Rothstein
A young Russian emigre couple from Boston, Natalya and Igor Sidorin, will be fighting over custody of their two sons in a Moscow courtroom on Friday. The boys are living with Igor here, where he says they are getting better medical care. Natalya has a custody order from a Massachusetts court, but it is not recognized under Russian law.
The case, which Moscow's ombudsman for children's rights calls a "collision of two legal systems," illustrates a common but painful problem in custody disputes between Russian and foreign spouses as well as emigre couples like the Sidorins.
Unless Russia joins 74 other countries in an international agreement on custody rights, children will remain unprotected against kidnapping by a parent to Russia -- which Natalya claims Igor committed -- or out of Russia, which Igor says he fears Natalya will do.
Parental abduction is not a criminal offense in Russia.
Igor and Natalya met and married while studying in California in the mid-1990s. They and their American-born sons, Sasha, 6, and Dima, 4, have dual citizenship.
The marriage was deteriorating when the couple planned separate vacations last June. They agreed that Igor would have the boys for a month in Moscow, where his family lives. After that, Natalya would take them to visit her family in Petrozavodsk, in the northwestern Karelia region.
Igor says the boys have chronic health problems that American doctors dismissed as normal. Natalya refused to discuss treatment in Russia, he says, so he took matters into his own hands. Igor says American medicine is very good for major emergencies but not for smaller but persistent problems.
Natalya says the boys were healthy and Igor just wanted to take them away from her. She says he disappeared with the children for several weeks last summer. During that time she filed for divorce in Boston and got an uncontested custody order, according to Natalya's lawyer, Yelena Zinger.
When Russian authorities refused to act on it, Natalya moved to Moscow, taking a public relations job with an entertainment agency. Igor said he holds a managerial position at a foreign bank here.
In extensive interviews, the two told wildly contradictory versions of the events that led up to the custody dispute and offered assurances that they had evidence backing up their claims.
Natalya is pressing kidnapping charges in the United States, according to her lawyer.
Igor's lawyer, Andrei Knyazev, said his client fears Natalya could abduct the children out of Russia through Belarus or Ukraine. Other lawyers and officials confirmed that because the borders are poorly controlled, normal protections against kidnapping, such as computer lists at checkpoints, don't always work in Russia.
Lawyers and government officials describe international parental abduction as one of the biggest problems in Russian family law, with children sometimes taken across the border more than once, first by one parent and then back by the other.
Moscow's ombudsman for children's rights, Alexei Golovan, said he receives about 70 parental abduction complaints a year, local as well as cross-border.
More often than not, he said, abduction pays off in the custody contest. The abductor gets control of the child's day-to-day life, has an advantage in preparing for the custody litigation, and manipulates the child's preference of where to live.
He said this and the forced separation from the absent parent cause "irreversible psychological damage" to the child, while legal delays work to the abductor's advantage and add to the child's trauma.
Golovan, a physicist turned lawyer, is a passionate and convincing advocate for children's legal rights. He told of a man in Western Europe who hid from his ex-wife for six years after smuggling their daughter out, contrary to a Moscow court's custody ruling. Last year, the mother found out where they were living and traveled there to steal a glimpse from afar of her daughter, now 13.
"People come crying to us, but we can't do anything to help them," said Alla Dzugayeva, an Education Ministry lawyer who is pushing for Russia to join the1980 Hague Convention on Civil Aspects of International Child Abduction.
Igor Sidorin's attorney said that in all of about 20 international parental abduction cases his law firm has dealt with, the Russian courts either ignored foreign custody orders or the foreign courts ignored Russian custody orders.
The situation is somewhat different with the United States. Foreign custody orders are enforceable there, even though Russian courts do not enforce U.S. custody orders, according to Donald Schuck, a New York family lawyer.
Dzugayeva said she knew of one or two cases in which U.S. courts have enforced Russian custody orders and sent the children back to Russia.
Child's Interests Ignored
Abduction tends to be more spousal blackmail or revenge than paternal devotion. Olga Istomina, a family lawyer and former chief counsel to the Education Ministry, and psychiatrist Jeannot Hoareau of the European Medical Center have observed a similar pattern in some cases: The father fights brutally for custody, but if he loses, he visits the child for a month or two and then stops.
Hoareau, who studied medicine in Moscow in the late 1960s and returned in 1995, expressed puzzlement about this: "It's very strange behavior, as if the former family didn't exist."
The opportunity for corruption in custody cases, where determination of the child's best interests is subjective, gives the abductor an advantage when he fights on his home turf, Golovan said. Organizing an abduction can be expensive, and the abductor is usually the financially stronger party.
Golovan said he has seen a number of "clear cases of justice for hire," consistent with a tendency he sees of courts favoring "adults over children, the strong over the weak, the rich over the poor."
For example, a Moscow judge last year gave a wealthy businessman custody over his 4-year-old son after the father showed he could offer a higher standard of living than the mother, although she was not poor, he said. The father was homosexual and openly invited lovers home.
Golovan, while stressing he is not homophobic, said that since Russia is a conservative society, he was "shocked" that the judge did not address the possible significance of the father's "nonconformity to prevailing norms of behavior" in comparing the parents' suitability to raise their son.
A Growing Problem
Parental abduction is a problem in many countries. A report prepared for the U.S. Justice Department in 2002 estimated more than 350,000 abductions took place across the United States in 1988.
There are no statistics on parental abduction in Russia because it is not a crime and because disputes have been rare, since few fathers have sought custody until recently, said Yelena Kupriyanova, an official at the Labor and Social Development Ministry who has worked on family welfare issues for more than 20 years.
But with changing views on gender roles, more marriages with foreigners and the power of money, fathers are becoming more assertive on both custody and visitation rights.
Kupriyanova estimated that fathers make up 2 percent of single custodians in Russia and 5 percent in Moscow. Most are divorced, but some have custody for other reasons, such as the mother's death or incapacity.
Paternal custody was almost nonexistent in the 1980s, she said. Divorced mothers received custody almost automatically, although "sometimes it played against the child's interest" and resulted mostly from tradition.
Even today, it is "very, very, very rare" for a divorced father to get custody, said Istomina, the family lawyer.
Igor Sidorin's lawyer said he believes Russian courts do not usually compare the relative financial condition of the parents. "George Soros would lose a custody battle to any Masha Ivanova, even if she were an alcoholic and drug addict with a one-room apartment," Knyazev said.
Under Supreme Court guidelines, a parent's standard of living is relevant to the custody decision but cannot be the sole basis, according to Natalya Sidorin's lawyer.
Natalya said her ex-husband wants to fight for custody in Moscow because it is his hometown, while she has no relatives here. "You can drown in this city -- like in New York -- if you don't have anybody," she said.
Igor retorted: "It's nuts to say it would be easier to get custody in Russia," in light of the statistics favoring the mother.
The consensus among experts appears to be that the best protection against what Golovan called the collision of legal systems in custody cases is the Hague convention.
"Either we are going to be a law-based society, or we play 'finders keepers,'" Dzugayeva said.
Schuck from New York, who has handled several parental abduction cases, said the convention "has worked quite well." When a child is taken from his "habitual residence," and there is a custody order from there, the convention requires the child to be returned home, which usually takes a few months. Any disputes on custody and visitation are heard there.
Dzugayeva said all relevant federal agencies in Moscow favor joining the convention except the Foreign and Justice ministries. The Foreign Ministry appears to be reluctant to allow foreign courts to decide where Russian children will live -- perhaps partly because there have been several publicized cases of Russian women marrying abusive foreigners and then fleeing with their children, she said.
But it works the other way around, too, and Russia needs the right to demand the return of Russian citizens from abroad, she said, recalling the case of a boy whose late father was from an Islamic country. Last year the boy's relatives lured the mother abroad and snatched the boy.
Dzugayeva said the Justice Ministry is waiting for a consensus and is willing to follow what everyone else decides.
The Foreign Ministry did not respond to repeated requests for comment this week.
The official in charge of the issue at the Justice Ministry could not be reached this week.
Igor Sidorin's lawyer, while "supporting" the convention, also expressed doubt that it could be enforced in Russia. "What will a court marshal do if a woman refuses to hand over a child -- break down the door and drag the screaming child away?" Knyazev said.
Custody orders are poorly enforced even within Russia, he added.
Since the Sidorins both want custody, the loser will presumably insist on visitation rights.
A "basic, no-frills visitation package" in the United States would be every other weekend, a visit during the week, half of school holidays and up to half of summer vacation, Schuck said.
Istomina said the American basic package is similar to arrangements commonly made in Russia, but it is harder to generalize here.
In both countries, the noncustodial parent is protected against arbitrary relocation and other changes that deny meaningful access to the child.
But enforcement of visitation rights is difficult.