Amtsgericht München’s interlocutory order

19 May 2022 the Amtsgericht München, by way of an interlocutory order, issued the following measures: (i) the right to determine the child’s place of residence is temporarily granted exclusively to the applicant; (ii) the respondent is to bear the legal costs; (iii) the cost of the proceedings is set at €2,000.

The court based its decision on §1671 Abs. 1 S. 2 Nr. 2 BGB, which provides that if the parents live apart for a period that is not merely temporarily, a parent’s application to transfer parental custody or part of paretal custody to that parent alone is to be granted if it is expected that termination of joint parental custody and awarding custody to the applicant is most conducive to the best interests of the child.

Based on credible facts presented by the applicant in the context of the interlocutory proceedings, it is expected that transferring the right to determine the child’s residence to the applicant is currently in the best interest of the child. This is because the respondent’s unilateral relocation to Uzbekistan with the child effectively deprived the applicant of access and subsequently prevented phone or video contact between the applicant and the child. This demonstrates a lack of tolerance from the respondent regarding the child’s relationship with the applicant, which is fundamentally detrimental to the child’s development.

The decision on legal costs is based on § 51 Abs. 4, § 81 Abs. 1, 2 Nr. 1 Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG). General provisions apply to costs for interlocutory orders. The respondent bears the court costs as she grossly negligently gave rise to the court case by relocating the child to Uzbekistan without agreement. The determination of the claim value is based on §§ 41, 45 FamFG. This ruling is not subject to appeal. According to § 54 Abs. 2 FamFG, an oral hearing must be held upon request, and a decision must be issued again based on such a hearing. The foreign court has determined the child’s residence with the father.

Furthermore, under the law the following applies. According to the RCM dd 18 May 2000 No 192 the Ministry of Justice of Uzbekistan is designated as the central authority for implementing obligations under the Hague Convention. Instructions from this central authority are mandatory for all ministries, departments, and local authorities in Uzbekistan. The central authority in the country where the child is located must take or arrange all necessary measures to determine the child’s whereabouts, who was unlawfully removed or retained, and arrange for voluntary return or peaceful resolution. It must also take appropriate measures to prevent further harm to the child or to third parties by arranging temporary measures and initiating legal or administrative proceedings to achieve the child’s return, and if necessary, ensure effective exercise of access rights. Legal assistance to individuals is governed under the Convention on the Civil Aspects of International Child Abduction (Hague, 25 October 1980), which Uzbekistan acceded to as per the Resolution of Oliy Majis dd 1 May 1998 No 629-I. It should be noted that the Convention is aimed solely at returning a wrongfully removed or retained child. It does not regulate the procedure for determining the child’s permanent residence or the establishment or amendment of custody arrangements. These issues are resolved solely by administrative or judicial authorities in the child’s habitual residence. The Convention covers only procedural matters related to the return of the child. The date of wrongful removal is considered to be the day the child was removed from the state of habitual residence, supported by all necessary documentation (attached). The date of unlawful retention is the first day the child was kept without the other parent’s consent. The Convention applies to any child who resided in a contracting state immediately before the breach (Article 4). The nationality of the child or parents is irrelevant. Rights of custody are defined in Article 5 and include ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ By the decision of the Amtsgericht München dated 19 May 2022, in case № 555F 4542/22, the right to determine the residence of the minor child born in 2018 was temporarily granted solely to the applicant (Mr. X, residing in Germany). The respondent (Ms. Y) was ordered to bear the court costs. The child and mother are registered in Tashkent.

The applicant through an attorney filed an application with the court for compulsory enforcement of the foreign court’s decision in Uzbekistan.

Mirzo Ulugbek Interdistrict Civil Court’s position

[The Court has cited Articles 364, 367, and 370 of the Code of Civil Procedure.]

The application lacked documentation proving that the party against whom the decision was made, and who did not participate in the proceedings, was duly and timely notified of the time and place of the case hearing.

Under these circumstances, the court, based on item 2 of part 1 of Article 370 of the Code of Civil Procedure (‘the party against whom the decision was made was not duly and timely notified of the time and place of the hearing or for other reasons could not present the explanations to the court’), concludes to deny the motion for compulsory enforcement of the foreign court’s decision within the territory of Uzbekistan.