With an increased number of international marriages between different citizens, lots of spouses may face specific problems affecting their family rights. As is known, the divorce may lead to irreconcilable contradictions between the spouses on different grounds. One of the main grounds may be the determination of where and with whom their child(ren) will live. Those conditions are determined by a court decree or mutual agreement of parents. But often times as a result of one of the spouses living outside of Republic of Armenia, a dispute on where their child(ren) should grow up arises.

According to the article 6 (six) of the Constitution of the Republic of Armenia, if a ratified international treaty stipulates norms other than those stipulated in the laws of RA, the norms of the treaty shall prevail. At the present time, many international acts have been adopted regulating legal status of children. The Republic of Armenia signed on to most of them.

‘The Minsk Convention on Legal Aids and Legal Relations in Civil, Family and Criminal Cases’ was adopted in 1993 for simplifying the regulation of such questions among the CIS (Commonwealth of Independent States) member-countries and it was also ratified by the Republic of Armenia. It provides a legal basis to determine the law of which country may be applied in establishing the rights of custody of children. Rights and obligations of parents and children are determined by the legislation of Contracting Party on whose territory they have joint permanent residence. In case of absence of joint permanent residence of parents and children, their mutual rights and obligations are determined by the legislation of Contracting Party, the citizenship of which the child holds. Establishment and cancellation of trustees and guardianship are done according to the legislation of Contracting Party, the citizenship of which the child holds.

The Convention on the Rights of the Child of 1989 secured the recognition of the rights of children. The child has a right to communicate with his/her parents. The states take measures to combat the illicit transfer and non-return of children abroad and also recognize the inadmissibility of separation of children and their parents, except in cases provided by the legislation. This is not accidental. Today the cases of children abducted from the place of the permanent residence and transferred to other countries, by one of the spouses are happening often enough. And often wishing to satisfy own personal desires and interests, the abductor loses sight of the fact that the abduction primarily harms the child, not to mention the fact that it’s simply illegal.

According to the legislation of the Republic of Armenia every child has a right to communicate with his/her parents, and given the fact that the development of child’s mind takes place at such an early age, abduction may have semi-permanent or indeed permanent negative impact on child’s overall development, complicate relations with his/her parents in present and in the future.

The Hague Convention on Civil Aspects of International Child Abduction

Ratified by the Republic of Armenia, The Hague Convention on Civil Aspects of International Child Abduction is specifically aimed at dealing with this phenomenon. It stipulates that if a child has been wrongfully removed or retained, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, and a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith to the place of child’s permanent residence. Please note that the Convention does not regulate the matters concerning the determination of the place of child’s residence or matters pertaining to parental custody. On these grounds, the court may decide to return the concerned child to the place of his/her usual permanent residence.

How returning a child is carried out?

Should you find your child abducted by your former spouse, at first instance you will need to find out to which country he/she has been removed to. You may get help from Central Criminal Authorities designed to facilitate the returning of an abducted child and control an observation of the Convention (above). The functions of those Authorities is carried out by the Ministry of Justice of the Republic of Armenia. In other countries, this can be allocated/carried out to/by other authorities. You can submit an application to the Ministry of Justice of RA. The application must include the information about the child, date of his/her birth, information about the applicant and the abductor. The applicant must justify his/her request about the returning of the child and specify all available information about his/her possible location.

Additionally, at the discretion of the applicant, the Authorities may include any agreement between the parties, the court decision(s) and other documents within the case. And only after this process has been satisfied, the Central Authority will take all the necessary steps to make contact with the abductor to try to arrange a voluntary return of the child to the place of his/her usual permanent residence.

In case of failed negotiations, you should think about protecting your child’s legal rights in a court trial. First, it is necessary to make a claim and submit it to the court of child’s current location demanding the return of the child to the place of his/her usual permanent residence. This action can also be initiated by the Central Authority of the country where the child currently is. This is done with close cooperation with the Ministry of Justice of the Republic of Armenia. 

In order to not burden yourself with unnecessarily stress, by execution of the legal side of the case, filing and filling the correct paperwork, payment of appropriate fees – you can confidently ask for help from ‘Vardan Khechyan LLC’. We will help you to solve all the problems effectively, confidentially and in shortest terms possible, using our extensive experience in such difficult and emotive cases.

What could be the decision of the court?

Having considered your case, the court can sustain a claim about the return of the child to the place of his/her usual permanent residence, if the removal or retention is recognized illegal, i.e.:

• it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was usually and permanently resident immediately before the removal or retention; and
• at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
• the rights of custody mentioned in sub-paragraph a), may arise by operation of law, by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

The court can reject a claim if:

• the person, institution or other body having the care of the person of the child was not actually exercising the said care or custody rights at the time of removal or retention, or had consented to, or subsequently acquiesced in the removal or retention of the said child; or
• there is a grave risk that his/her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation.
• the child objects to being returned if he/she reached the legal age of the State and the degree of maturity at which it is appropriate to take account of his/her views.
• the return of the child is against the fundamental human rights and freedoms of the State where the child is currently present.

Also, remember that the provisions of this Convention will cease to apply when the child attains the age of 16years. Claim for a return of a child to the place of his/her usual permanent residence must be made within one year from the moment of an abduction/retention. The child can also be returned after the one year term has expired unless he/she has adapted to the new environment. If your child(ren) was removed to a country which has not ratified this Convention, the conditions above cannot be applied. In this case, you should try to solve this issue in the court of the country where the child was retained, or to turn to the law enforcement agencies of that country. And in this case, ‘Vardan Khechyan LLC’ will provide you with appropriate legal support by making all reasonable effort to restore the rights and legal interests of your child(ren).

16.01.2015