Bethenny

Hi there. I hope you can help me.

We're living in the USA, all british-born (me, husband and two kids). Husband is on a L1 visa and I'm on a L2.

We're having problems. Does anyone know:

- if we were to seperate, would I lose my visa and have to return to the UK?

and/or

- if I wanted to take the children back to the UK, my husband would be able to stop me?

Thanks in advance for any help you can offer.

Octang Frye

Ouch, that's a shame. I don't think he could stop you, but I don't know. If they were US citizens, you'd need permission.

Hope you guys can patch it up for the sake of the kids.

Jerseygirl

Welcome to BE.

If they are residents of the US...which it sounds like they are...I don't think you can take them back to the UK without their father's permission. If they are older children the court may take into consideration what they want to do.

Good luck. Unfortunately this is one minefield most of us don't consider when we move overseas.

Bethenny

Thankyou. I hope we'll be ok. We just need space from each other right now I think, which is difficult in our situation!

Michelmas

I would have thought that the fact they are british citizens would outweigh the fact that they are US residents. Not sure what, if anything can / would be done if you were back in the UK before anyone knew anything about it.

This is NOT a legal opinion or a suggestion of a course of action.

ljaw2002uk

I would agree with this. I don't think the US would have any juristiction over the return of UKC children to the UK, especially if the father is not a USC.

Jerseygirl

I used to think so too...but in the past I've read about people in a similar situation in the MBTTUK forum.

Edit: The OP doesn't say how long they've lived in the US...that may or may not be relevant.

Englishmum

You are on non-immigrant visas so I can't see how your children can be detained (for want of a better word) indefinitely in the US, I would imagine they could only stay as long as their L2 visas are valid.

Which State are you in? You may want to do a search for child custody issues for your State. For instance, I am in New Jersey. Under NJ State law, any child born in NJ or has been resident in NJ for 5 years is considered "a native of the State".

My best friend is in a (somewhat rocky) relationship and her youngest is 3 years old (born Down Under but has dual US/Oz citizenship, but has lived in NJ since the age of 4 months). She is planning for the family to return Down Under (with the child's US father) in about 18 months; she doesn't want to have to stay in NJ until said child turns 18 years old and I guess she thinks the relationship with her partner may run its course before then.

The O/P may want to have a quick perusal of this website, although to be honest it would seem that the main habitual residence is the UK because of the visa situation (however I'm not a lawyer!):

http://www.reunite.org/ (British website re: international child abduction)



PS: My friend is renting a house in NJ but her landlady is a USC divorcee with 3 children, living in Brooklyn, New York. My friend asked her why she isn't living in the house (which she inherited) as it is in a great school district. The landlady said that she isn't allowed to move the kids more than 25 miles from Brooklyn.

Karen68

I thought that if someone is here on a visa, they are not technically US 'residents'. Also if your visa is a dependent's visa, if you are no longer together that may very well affect your right to stay in the US independently of your spouse. I had a friend whose marriage went belly-up and she simply booked flights back home for her and the kids without telling her husband. She just packed their clothes and left everything else behind. Sad, but it happens. Hope you work through your problems.

md95065

There are lots of different definitions of "resident" - the real question is whether they are subject to the jurisdiction of the US courts - and in general it would be prudent to assume that the answer to that question is "yes".

As a practical matter, absent any any prior legal action or court orders to the contrary since the OP is one of the parents nobody is going to stop them from getting onto a flight to the UK with their children.

penguinsix

Ok, WHOA! Whoa! Whoa! Stop!

Your visa status, their nationality, their culture, schools, passport, "residence"--whatever--that is SECONDARY to the question of "what is the location of their habitual residence" and quite frankly, this is NOT a unilateral decision you should be making, as it is not your decision.

The guiding principle on this is the Hague Convention on Child Abduction. You take the kids back without permission and he decides to act, this is what will be coming into play, and it is a world of hurt. There will be a court decision on the child's habitual residence (and there is no real set guidelines on what determines this) and this will take place before any custody matters are settled. If the habitual residence is in the USA, they will be sent back IMMEDIATELY.

You will have a gigantic black strike mark against you in future child custody cases if you kidnap the children (and yes, that's what it will be called) at this point without his permission.

Please consult some professional legal advice on this matter. If you cannot afford it consult with some women's shelters or other family legal services or immigration services.

I'm sorry things are going bad, but please don't make them worse. Get some professional guidance on this one as it is a really tricky one.


For more information also check out this:

http://en.wikipedia.org/wiki/Hague_C...hild_Abduction

Here are some money quotes from that link.

Procedural nature

The Convention does not provide any substantive rights. The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left-behind parent.

The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.

Wrongful removal or retention

The Convention provides that the removal or retention of a child is “wrongful” whenever:

"a. 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 habitually resident immediately before the removal or retention; and
"b. 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." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.

"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."

Habitual residence

The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.

Jerseygirl

That's pretty much what I thought penguinsix. I hope the OP comes back because it looks as though she read OF's post then logged off.

Karen68

Penguinsix, that's a brilliant post you've made. I for one had forgotten that it could be considered kidnapping, however stories like that appear in the press reasonably often. I really hope they get through this as it's tough enough having marriage problems anyway, but they are magnified when it's just the two of you thousands of miles away from 'home' and family/friends.

Jerseygirl

As I said earlier...it's an area that most of us don't give any consideration to when we move overseas. What would happen to our daughter if my husband and I had separated after we moved here never crossed my mind.

Michael

I'm sorry but I will disagree with all of you. If the US doesn't have jurisdiction, then who would? If you think Britain, then you've opened up a whole can of worms.

What if she fled to Canada? If Britain had jurisdiction, that would mean he would have to go through the British courts to try to get the kids back. In my opinion, the US would have jurisdiction since that would be from where the kids were kidnapped. You can't just pick and choose the laws and jurisdiction that you want.