A parent who lives apart from the child has the right to contact with the child, to take part in raising the child, and to have a say in decisions about the child's education. The parent with whom the child lives must not obstruct the child's contact with the other parent, provided such contact does not harm the child's physical or mental health or moral development.
All questions concerning raising and educating the children are decided by the parents by mutual agreement, based on the children's interests and taking their views into account. Where the parents disagree, they are entitled to have the disagreement resolved by the guardianship authority or by a court. Where the parents live apart, the children's place of residence is fixed by the parents' agreement. Absent such an agreement, the dispute between the parents is resolved by a court, based on the children's interests and taking their views into account.
These are the statutory rules, in which everything might seem perfectly clear. In practice, however, things can look quite different.
A man came to our law firm — let's call him Yuri — and stated that his wife wanted to take his child away from him. The consultation with the client revealed the following. Yuri is a late resettler (Spätaussiedler) and holds two citizenships, which allows him to live in Germany and in Russia without restriction. He has a girlfriend and his own apartment in Russia. For a time, Yuri lived in Russia with his girlfriend, though they were never formally married. A daughter was then born to them, and Yuri officially acknowledged his paternity. They planned to marry and to move permanently to Germany. But — as the saying goes, man proposes and fate disposes — Yuri's girlfriend ran her own travel agency and had somehow gotten herself into financial trouble; several criminal proceedings were pending against her. As a result, she was unable to leave Russia, and she was in no hurry to marry either. It seems the pregnancy and the birth of the child had come at a rather inconvenient moment. From the day their daughter was born, it was Yuri who cared for her, since his partner had sunk into a deep depression. Once she had recovered, she announced she had to go back to work — the "financial crisis" had to be resolved somehow. Yuri had no objection; he was managing perfectly well caring for his daughter — feeding her, taking her for walks, bathing her — in short, he had taken over her upbringing entirely. But the financial problems never went away, so Yuri suggested to his girlfriend that her mother look after their daughter while he himself found a job. His girlfriend and her mother agreed, and in July 2012 Yuri found work. Yet the situation did not improve — it grew worse. According to his girlfriend, her creditors had begun threatening her. She started coming home from work late and was always irritable. Yuri began to suspect she had another man. She then told Yuri she feared for their daughter's safety and suggested he take the child to Germany with him; once things had been "sorted out," she would let him know. In November 2012, Yuri left for Germany with his daughter.
Two months passed like this. Throughout that time, they stayed in touch by phone. But something about the situation left Yuri feeling uneasy. In January, he decided to visit his daughter's mother and flew to Russia. In his own apartment, he found his girlfriend with another man. A scene naturally followed, and Yuri threw the "lady of his heart" out of his apartment. Their daughter was in Germany at the time with Yuri's mother. He knew — from what his girlfriend had told him — that she and her relatives were receiving threats from her creditors, and he feared for his daughter's safety as a result. He returned to Germany in March. Phone contact with his girlfriend continued; she agreed that their daughter should stay with her father in Germany. But then something changed — Yuri did not know exactly what. The child's mother began insisting, in their phone calls, that he return the child to her. She told him she intended to file a lawsuit in Russia to have their daughter's place of residence fixed with her. She also threatened to file a report with the German authorities seeking the child's return to her.
This was the situation Yuri brought to the lawyer. After speaking with the client and receiving his instructions, the lawyer prepared and filed a lawsuit with the German court seeking to have the child's place of residence fixed with the father. The German court, having reviewed the claim, sent inquiries to Russia and, based on the responses received, explained that it could not hear the case, since the girl's mother had already filed a lawsuit in a Russian court seeking to have the child's place of residence fixed with her, the girl was a Russian citizen who had been in Germany only a short time, and her parents were not married. It turned out that his girlfriend's threats had not been empty — she had not merely intended to file suit, she had already done so. The lawyer, however, only learned of this after the case had already been filed with the German court. The German court could only accept and hear such a claim where there were very serious grounds to do so, and provided the child had already been in Germany for at least a year. That condition was not met here. To spare the client further expense, the lawyer had to withdraw the claim.
After that, events unfolded very quickly — Yuri's girlfriend arrived in Germany (how she managed this given the criminal proceedings pending against her, we do not know), claiming that, first, she missed her daughter, and second, that she wanted to have a serious talk with Yuri. Having spent two days in Germany, she... disappeared together with their daughter. It was only then that we learned the Russian court had already heard the case and ruled to fix the child's place of residence with her mother. The ruling had already become final. The client had known this but had said nothing to his lawyer. We also learned that the German public prosecutor's office had opened criminal proceedings against Yuri for allegedly unlawfully retaining the child. But once the mother had taken their daughter away, Yuri himself filed a report with the authorities stating that the mother had taken the child. The proceedings against him were closed.
Both Russian and German law provide that parents may conclude a written agreement on how the parent living apart from the child is to exercise parental rights. If the parents cannot reach agreement, the dispute is resolved by a court at the request of one or both parents. With the mandatory involvement of the guardianship authority, the court may set out how parental rights are to be exercised pending a final court ruling. In the story we have told here, the child's mother exercised her right and went to court, and the court ruled in her favor. We had no grounds to challenge a court ruling that had already become final, since the claim that the child faced some danger in Russia was never backed by any evidence — we knew of it only from what our client had told us. As it turned out, the mother had presented no such information to the Russian court either.
The professional code of ethics for lawyers sets out rules of conduct that are binding on every lawyer in the practice of law, grounded in the ethical standards and traditions of the profession, in international standards, and in the rules of legal practice. When carrying out an engagement, a lawyer proceeds on the presumption that the documents and information supplied by the client are accurate, and does not independently verify them. If, after accepting an engagement, circumstances come to light under which the lawyer would not have been entitled to take it on, the lawyer must terminate the engagement.
That is exactly what happened in this case — the client had given his lawyer information about the state of affairs that was not entirely accurate. Had the lawyer known from the outset about the Russian court's final ruling, he would have limited himself to advising the client and explaining the actual state of affairs.
From Our Firm's Practice
All questions concerning raising and educating the children are decided by the parents by mutual agreement, based on the children's interests and taking their views into account.
In our articles, we constantly point out that the key to successfully resolving a client's problem depends to a great extent on the mutual trust between lawyer and client. This is, one might say, the crucial element in that relationship. We understand that our clients do not always find it easy to open up fully to their lawyer. Yet without the client's help, and without a full account of every circumstance of the case, a lawyer has no way to help resolve the problem. Mutual trust, honesty, experience, and professionalism — these are the ingredients that lead to the successful resolution of any problem. With this article, we want to say once again to our clients: if you have decided to place your trust in a lawyer, have the courage to see it through, and do not complicate your situation by leaving things unsaid.
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