HartleyHare

Snowing here today.

Hotscot

I'm watching my Hummingbirds...
And my cats are laid out on the back patio..basking...

HartleyHare

I'm watching "The Fifth Element" with the dog asleep on my lap.

Sally Redux

I'm watching my waistline cos I just had a beef and ale pie and a sticky toffee pudding.

HartleyHare

Funny how you can go off someone.....

Sally Redux

Sally Redux

Apologies to drummergirl. I think we're just mulling over the difficulties.

I sincerely hope that you can find a good solution.

penguinsix

Hi,

I’m sorry to hear about your current situation, but would note you are doing the very wise thing in reaching out for help about this matter BEFORE you conduct a relocation. This pre-planning now is going to save you the potential of tremendous heartache later.

First, and most important, please get professional advice on this matter, from groups such as Reunite.org or from a family attorney in the UK. This is not a DIY project and you are right to be planning “worst case” scenarios where things like ‘verbal agreements’ and whatnot hold little weight.

As for your question, a couple of things I would note.

1) I believe New York divorce courts require 1 year residence in New York before they will hear a case.

2) “Resident” for the purpose of travel has no time requirement. Airlines can (and occasionally do) require a permission letter before they will let you board the aircraft without both parents present. This requirement varies by country and by airline (i.e. don’t even think of going through Canada without a letter) but there is no hard and fast rule as it relates to travel.

3) For the purposes of "jurisdiction" for child custody cases in New York courts (i.e. the term of art you need, not "resident") it appears the courts will not hear a case unless New York is the “home state” of the child, with the definition of “home state” being “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” This posting will walk you through the test New York courts use to determine jurisdiction under what is known as the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)

International Family Law Firm

However, this has to interplay with the Hague Convention, which others have mentioned and the child’s “habitual residence”, should there be a unlawful return to another country without permission. Should you come over for say five months and then leave back to the UK, the courts could rule the clock didn’t stop such that the six-month requirement for NY was satisfied and NY courts should hear the case (i.e. you returning to the UK would be a ‘temporary absence’ while ‘resident’ in New York). As such, say you come over, have a row and then leave without his permission, the courts will have to make a decision on where "habitual residence" is located for the purposes of the custody arrangement. Basically, don't think the six-month thing is a hard and fast rule, especially with an international situation and doubly so if you relocate without permission.

International Family Law Firm
and also
UCCJEA and International Child Custody Jurisdiction — Los Angeles Family Law Blog

Now, all that said, my advice is that this is a minefield you should not enter.

Please don't travel until this is sorted. If things are in the process of a winding up, then this might really be the time to have the necessary discussions and sit down to sort this out, perhaps first with a marriage counsellor and then progressing up to a family lawyer. I'm not saying you have to split right now, but you should be looking at some arrangements that will take effect should that occur. An agreement that the children shall return should one spouse not be happy, or if there is a split an agreement that UK courts will hear the custody dispute. Something like this in writing will save you a considerable amount of hassle later on. Sorting these custody arrangements out now before your relocate and set foot on US soil is essential, though beyond the capabilities of a message board I’m afraid.

Moving internationally, even if you have more money in the bank account, opens up a world of other challenges that can cause frustration at best and depression and resentment at worst. We've seen so many cases of marriages in trouble get even worse with a relocation, and even some stronger marriages go through some truly testing times. Your trying to seek a solution now is very wise and so much more prepared than many of the folks we see "later" in trouble who come back noting the excitement of the big move had glossed over some pretty big cracks.

Just to reemphasize one point, because it is so important -- Whatever you do, please do not leave the country with the children without the permission of the other spouse. This puts you into the Hague Convention enforcement procedures which can be very ugly. How ugly? Please consider watching this video of an Australian mother as her child are bundled up by the police and sent back to their father in Italy. It’s disturbing and frightening, but it is a sobering warning about the “worst case” scenarios that can happen in these situations.


Good luck with the tough choices ahead.

SanDiegogirl

If entering on L2 visa to live in the US I would think that the wife and children could be considered resident in most situations from the day they arrive.

Take for example moving to California to live. The DMV request that you obtain a driving licence within 10 days of arriving (as, if you are now living in California you are, in their eyes, resident).

If working the tax man does not consider your first 6 months as not being resident when it comes to paying taxes.

In the case of divorce, have no idea what the rules are - but if considering this might happen, why take the chance?

JAJ

And the worst case scenario is that the parent isn't necessarily entitled to permanent residence, even if their children are confined to another country. So the parent may be forced to either abandon their children, or remain as an unlawful non-citizen in that country. Without any right to work, access social benefits, or even some day to day necessities such as a driving license.

Although this is an extreme scenario, prevention is a lot better than cure. It may be that the least worst option in the situation given is, (if the husband wants a career in the U.S. above all else) for there to be an amicable split, the children stay where they are, and for him to act as a long distance father.

petitefrancaise

You are right to be very cautious and well informed. Good for you for doing this and looking out for yourself and your kids. I've seen plenty of ex-pat marriages that have gone down the pan and the mother (usually) has ended up having to stay in a country because of legal issues concerning the children.

A few ££ spent on a lawyer would be well spent indeed.

Good luck to you.

Mrs Danvers

I'd just like to congratulate the board for the very sound advice given here. I divorced in 2008 but couldn't leave because of children and it wouldn't have been right to do so. During the time I was a single parent it would have been wonderful to have real family support close by. I did feel very trapped here at times. Edited to add I was financially self sufficient to support myself and family along with being a permanent resident and entitled to work.

My brother who lives in another country is now contemplating a move back to the UK where his children will not be with him full time.

I'm glad that the OP has their eyes open.

Linocks

Hello,

I have no legal advice but am aware of a friend who’s wife left the UK with their children on the pretext of visiting her mother in Maryland. At the time her marriage was ‘rocky’.

She stayed in the USA with no ‘right of abode’ and refused to send the children back to the UK. Her husband visited her there and she made an allegation that he had threatened her and to take the children back to the UK. This was fabricated. On the advice of the lawyer he 'agreed’ not to contact her for the duration of his visit and to arrange visits with the children via her mother. An Order was also made by the Court for her to return the children during school holidays paying half the costs and he was to pay child support (an amount also defined by the Court.
Notwithstanding her immigration status, the Court allowed her and the children to remain in the USA. He pursued the matter using the Hague Convention facilities but was told they would not assist as he had a finding of abuse against him in the Maryland court. It will suffice to say that she collected the child support every month but never sent the children back.
I only mention this because there was a suggestion that if they do not have the right to settle they would have to leave (though they did qualify it by adding "I don't know the answer!" .

My friend, however, at that time staunchly believed the Courts in Maryland favoured (& believed) the females in any relationship that has broken down so you may be lucky.

Whatever you do, I agree with all the people who advised you to seek sound legal advice.

All the best in your endeavours.

MarylandNed

I have no idea where you are getting this "residency" idea from. Your husband could apply for a custody order that includes travel restrictions at any time starting on the day you arrive with the kids. He could even ask a court to hold the children's passports so that you can't leave the country with the children. The U.S. does not have exit controls so it's easy for you to leave with the children unless your husband tries to stop you (legally or otherwise) or the airline has its own policy of checking.