Elvira

A cautionary tale for anyone whose relationship has gone sour and is considering absconding. This happened in the US, but laws against child abduction are international. (I just thought I'd post it here because we do occasionally see posters who think they can just 'move back with the kids'...)

"I couldn't bear the thought of being separated for ever from my five-year-old daughter - what mother could? Panic-stricken and distraught, I bought air tickets to Ireland and, despite a custody order stating Tamara could not be taken out of Pennsylvania, she and I fled the US. I did not tell Michael and he was understandably less than pleased.

One day at 6am came the knock on the door I was dreading. The police arrested me and bundled us into a car. After being driven to a car park several miles away, Tamara was snatched from my arms. .........I was put on a plane to Heathrow with no idea what had happened to Tamara.............On arrival at Heathrow airport I was charged with kidnapping and put on remand in HMP Holloway for six months. "

http://www.guardian.co.uk/lifeandsty...xtradition-usa

JAJ

More cases like this and there will be pressure among governments, especially those of a more nationalistic persuasion, to withdraw from such "conventions".

For example, if country A wishes to ensure that a child is kept within its jurisdiction, it has a (moral) obligation to offer residence to the other custodial parent. If this is not done, then the entire basis of the convention - mutual trust and compatibility of laws among nations - is undermined.

dingbat

I would have to agree....

Englishmum

My best friend (dual national Aus & US) is pregnant, with her baby due next month. She is 42 years old and has two children from a previous marriage (11 and nearly 7, but receives no child support from her deadbeat ex).

She has just returned to her native Australia to deliver the baby as she knows that in the USA, the local State rule is that any child born in the State or is resident for 5 years or more is considered a 'native' of that State. She knows that if one day she splits with her boyfriend, he is very likely to go to court and have an order made where the child is unable to move to another State (let alone overseas) until the child is 18 years old.

Giantaxe

What state are you talking about? I am very sceptical that the place of birth of that child would make any difference at all in a US court's decisions in a custody hearing in such circumstances. Or are you saying that she intends to remain in Australia after the birth because she doesn't want to risk having a US court making such a determination in the event of a child custody dispute?

snowbunny

Absolutely agree. In the US, however, this is complicated because divorce and child custody are handled at the state level, and immigration at the federal level.

(To all who have not read the article: the mother did not have any recourse to a visa to stay in the US, but her divorce decree said that her five-year-old daughter could not be removed to Pennsylvania. This is not a case where a LPR or citizen fled with a child.)

Englishmum

The State is New Jersey.

This is what it says about removing a child from NJ (and in the case of child custody issues it doesn't matter if the parents are married or not):


http://divorcecenterofnj.com/wordpre...emoval-issues/

(Section 2 is particularly relevant - in NJ a child born in New Jersey is considered a 'native' of the State)


It's difficult to determine if the Hague Convention guideless supercede NJ State law, but my friend decided to fly to Oz and will have the baby there and buy some time.

A few years ago she had a run-in with her ex (who moved back Down Under) when he went to a magistrate's court and got an order to prevent their children flying back to the US after visiting their maternal grandparents in Oz. After mediation he agreed that they could return to the US but he's never paid any child support....dead-beat dad who hangs out at the beach all day. She also has a friend in her line of work who would love to come over to work in NYC but can't.....she's divorced and her ex won't allow their child to move out of California, so is aware how restrictive State laws can be in the US.

My friend would prefer to stay in Australia....but since last Summer hasn't been able to sell her lovely Victorian house nor rent it out, and the current boyfriend isn't helping her with the mortgage or bills (he's moved in with his mother! He told her that he wanted her to have the baby but can't afford to support her....has a good job too!). She may have to return to the US and go back to work as she doesn't want the house repossessed.

Giantaxe

She would need to get a court order in California to take the children out of state; her ex doesn't have veto power on this. I know several of my childrens' friends who have moved out of California in such circumstances.

And are US state laws really more restrictive than those of other countries? I am unconvinced. After all, we are talking about a continent-sized country here so not allowing one parent to move children from CA to NY without court permission kind of makes sense given the distance involved.

Englishmum

Actually (although I have no experience personally) it does appear that some of the US state laws regarding child custody can be restrictive....after all each state has its own laws and is really like a country unto itself. If you look back to that link I posted, it lists a dozen things that the NJ State Supreme court has imposed which *must* be taken into consideration before permission is granted before a child can be taken out of State. In the next town to where I live, an acquaintance sold her house to a man who had just won a court case and won custody of his 7 year old son; his marriage had broken down and his ex-wife had moved from the NJ suburbs to NYC with her new spouse. The NJ court would not allow the child to live in New York as the father showed the court that the son was settled in his school and had friends in the town, so when the marital home was sold the dad bought the slightly smaller one in the same town....

There is at least one regular poster on the USA boards who can't leave her State with her children because her ex won't agree to it.

On the other hand, if a couple splits up and one of the parents wishes to move overseas with their child/children and the other parent objects, I should think it would be very difficult to convince any court to agree unless there are *very* convincing circumstances....one would at the very least have to show the court how contact is going to be maintained between the child/children and the other parent? It's not easy and obviously some parents get so exasperated/frustrated with the legal system (if they can indeed afford legal fees) some of them do abduct their children...

Some interesting info here on how this law firm shows steps on how to prevent a parent from instigating an international child abduction (in NJ):

http://divorcecenterofnj.com/wordpre...al-case%c2%a0/

snowbunny

Out of curiosity, is this your friend with the very hot but very stingy boyfriend?

I can't move my children out of this county except to a county contiguous to this county. Given the generous size of the counties, that's a radius of about 60 miles - far enough to make shared custody difficult, but not far enough to escape the high cost of living in and near Austin. My worry is that this geographic restriction will be disastrous if I were to lose my job, because I wouldn't be able to relocate.

There really isn't a "good" solution but the US courts *these days* tend to favour joint physical custody even if this is a huge burden on one of the parents (which then gets transmitted to the kids).

Dreamer23

I am lucky, my husband has no problem with us moving back to England. I would suggest to other's who are going through a divorce with children to file divorce through an international law firm in England. If you are a British Citizen and consider England to be your home, you can file in England providing your ex has not started divorce proceedings. You will get more of a desirable outcome with your children as you won't have to deal with the state laws over here. I would imagine if you are dealing with an English law firm that you would be able to move to England and if the children are British Citizens, which they should be automatically they should be allowed to live in England with you.

Giantaxe

Right, but given that the US is a continent-sized country, this actually makes sense. After all, the move you cited from CA to NY is the equivalent - distance wise at least - to a move from the UK to Greece. So my retort would be, "after all each EU country has its own laws".

So how would, for example, a Flemish court deal with an ex-wife who'd moved from Antwerp to Rotterdam and asked for custody? That's the kind of comparison that's relevant to make a determination as to the purported stringency of US states' laws.

And presumably the court determined that it wasn't in the best interests of the children for that to happen. As previously pointed out, many states favour joint custody where possible. I really don't think that's a bad policy in general, although I agree that it wil lthrow up cases that seem very unfair.

Tootsie Frickensprinkles

The US plays hardball only when it suits it. Many of these rules and regulations about settlements, divorce and maintainance have a distinct, 'you're either for us or against us' tone to them. When looking at it from an international persepctive anyway.

dingbat

It does not work like that - at all - it will depend on which court has jurisdiction (or is deemed to have jurisdiction upon application by either party)to deal with the matter. For most of us, that will be the jurisdiction in which the children were ordinarily resident when the parties separated.

Englishmum

Absolutely correct.

It can take as little as 6 months for a child to be deemed 'resident' in a new abode (ie. settled) according to some of the judgements made in international custoday disputes where the Hague Convention is invoked.