Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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)

:fingerscrossed:

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

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.

Re: Can I bring my (british), kids home without my husband's permission?
 

I find it hard to see how someone can be deemed "habitually resident" in a place where they are neither a citizen nor a permanent resident.

Secondly, there are exceptions to the "send children back" rule, and a situation where the mother has no right to be in the other country (and no prospect of gaining that right) could well be one of these. Of course speak to Reunite and others who have got more expertise, but the outcome you want to avoid is a situation where the children get kept in the US and the mother (simply for lack of a visa) has to either stay illegally or leave them behind. Could there be a criminal offence involved if the children aren't US citizens/LPRs? Hard to say.

If the spouse of a US citizen it is sometimes possible to self-petition for residence if the relationship ends but I don't think that applies to a situation where someone is on L status. An immigration attorney would have to confirm.

At the end though no-one on a forum like this knows for sure what the options are.

Re: Can I bring my (british), kids home without my husband's permission?
 

I am here! Just don't want to be looking at this thread too obviously - hope reasons are clear.

Suddenly absconding isn't an issue. He is saying that if I left him, he would be able to get me deported without the children. I need to know if that's the case. It looks like it's not.

Re: Can I bring my (british), kids home without my husband's permission?
 

IMO you need to seek expert legal advice and an internet forum isn't the place to get it. Good luck.

Re: Can I bring my (british), kids home without my husband's permission?
 

It's really tricky because there is no cut and dried definitions of "Habitual Residence". It's been left up to the courts and there have been various interpretations, most often focused on the best interests of the child, rather than the intentions of the parents.

Here are a few from New York that illustrate some of the complexities. Other states have differing interpretations as well.

http://www.brandeslaw.com/Internatio...hague_conv.htm

I think the long and the short of this, as others have mentioned, is to recognize this is an area requiring professional legal advice, not message board comments as to what are your rights or what is residency, etc. All parties in this case, you, your husband and your children (individually) have legal rights in this matter. Neither you nor your husband will be able to "unilaterally" assert a right, such as taking them away or 'having you deported without the kids'. These are matters for the courts to decide, and it's why professional advice is going to be needed.

You might want to look around and see if you can get a consultation with a family law professional, either in private practice (some give a free first consultation) or through some legal aid agency or immigrants rights organization.

Sorry it's headed this way.

p.s. one other thing we forgot to mention is that some (not all, but some) airlines will question you if you try to fly without both parents, on occasion requiring a signed letter from your other spouse authorizing the trip (there is really no rhyme or reason--it happens to some, doesn't happen to others).

Re: Can I bring my (british), kids home without my husband's permission?
 

By the way, Reunite, the group cited by JAJ and others I think has a "hotline" you can call for information.

+44 (0) 1162 556 234

They help people trying to get their children back or even people who have brought their children back without permission (according to their website). Why don't you give them a ring?

Re: Can I bring my (british), kids home without my husband's permission?
 

But has there ever been an instance where a child has been deemed "habitually resident" in a country where that child is neither a citizen nor a permanent resident?

I would ask that question to Reunite and work from there.

Re: Can I bring my (british), kids home without my husband's permission?
 

Definitely ask them as it is a good question. I don't know off the top of my head, but at a hypothetical level I would argue (if I represented the husband) that they came here on an L2 visa which is a dual-intent visa and maybe their intent was to stay(?). The shared intentions of the parent were to remain in the US and move toward permanent residency for them and their children. That it has now changed doesn't change the original intent, and that shared intent is something that will be considered by the judge when he makes the habitual residence determination. (I think one of the courts says "look at the shared intent the last time it was actually shared" or something to that effect). If the children stay with the husband there are no visa issues as they would continue to be covered under his L2 and dependent visas, which are stepping stones toward permanent residence and eventual citizenship here.

The test is far more a shade of grey than tests like residency, domicile or citizenship, which can often be spelled out in a legal form or procedure. It's also something that is decided by a judge, not either party in the dispute. I'm sure she has some strong arguments that habitual residence is the UK (perhaps, as you noted, citizenship of the children or lack of residency in the US) but those will have to be decide by a judge who looks at the whole picture.

I hope she calls Reunite to get some more guidance.

UPDATE:

I was reading a law review article that made a good point: the reason the Hague convention is so vague is precisely because they wanted to avoid technical definitions and requirements, which will vary from country to country. So issues like citizenship, residency, domicile, which are all fairly well established in various courts and countries, are not really what come into play in decisions like this, which involve conflicting countries and conflicting parents.

The Convention does not define habitual residence. Instead, the Convention deliberately left habitual residenc undefined in order to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems. In doing so, the Convention sought to prevent habitual residence from acquiring an overly technical or idiosyncratic definition comparable to the notion of domicile.

more here: http://law.wustl.edu/journal/33/Winter.pdf

p.s. OP please consult a professional.

Re: Can I bring my (british), kids home without my husband's permission?
 

By the way, this is an interesting case:

http://www.leagle.com/xmlResult.aspx...URR&SizeDisp=7

The first seven pages are boring facts which don't really matter that much (a Slovak deported from the USA with 10-year-ban trying to get a kid to the UK, where the mother had stayed briefly with him to try and work out the marriage). But the next few pages after that get into discussions about habitual residence and different tests that were used. A tad legalistic but you might find some interesting discussions in here about different cases. Not much on point but will help explain some general concepts.

Re: Can I bring my (british), kids home without my husband's permission?
 

I don't think this situation meets with the legal definition of kidnapping...

Re: Can I bring my (british), kids home without my husband's permission?
 

Don't be so sure about that.

In the absence of any court order both parents are normally assumed to have shared custody of their children - if one parent removes the children and denied the other parent access to them then an accusation of kidnapping is not at all unlikely.

Re: Can I bring my (british), kids home without my husband's permission?
 

At the moment it may not but if he felt she may flee with the kids, he could possibly get an emergency court order to prohibit her from fleeing the jurisdiction with the kids until custody is decided. Then that might be considered kidnapping if she removed the kids from the jurisdiction.

The ultimate right of the female to decide what is best for their children has long passed. Logic would seem to dictate that the US should stay out of the family affairs of foreign nationals but would we say the same if he took off with the kids? We can't have it both ways.

Re: Can I bring my (british), kids home without my husband's permission?
 

Interesting site with some advise on international divorce...

http://www.marilynstowe.co.uk/2011/0...laura-guillon/

Such a sad situation, hope you manage to work things out for all of you.

Please also consider how you would feel if it was your husband who was considering going back to England with your children and leaving you in the USA, you can't blame him for wanting to stop you.

Re: Can I bring my (british), kids home without my husband's permission?
 

I don't want to try and imagine being in his situation, because in his situation I would return to the UK immediately. We never intended to stay, it is a secondment.

Re: Can I bring my (british), kids home without my husband's permission?
 

I think it would be fair to assume that you also have family support in the UK and that the childrens' grandparents, uncles, aunts and maybe cousins are there, whilst there are few (if any) family members in the US. Do you still have a home in the UK?

FWIW some posters on BE seem to think that anyone with an L1 or L2 visa automatically wants to go for Green cards (ie. permanent residence) but I know many, many expats who just want to do their 3 year posting here and leave the States.

Good Luck! :fingerscrossed:

Re: Can I bring my (british), kids home without my husband's permission?
 

Yes, we have friends, family etc in the UK (and somewhere to live). Nothing here.

No offence to anyone who does want a green card or to stay forever but I really can't imagine that! another reason I want to go home, as our eldest child will soon be at GCSE time. My husband's scenario would see us returning halfway through GCSEs which would be a disaster.

Re: Can I bring my (british), kids home without my husband's permission?
 

It seems that all of this discussion about residency and abode and domicile and passports and whatnot is likely irrelevant because the real issue is that you probably don't want to be invoking the bridge burning (just yet). It does seem like you have many arguments in favor of "habitual residence" in the UK, and there may come a time for the nuclear option but it's filled with risks and the potential for a loss of your visa and custody issues. Probably not what you had in mind when you came here.

There are some alternatives however. Taking off the lawyer hat and putting on the expat hat, we've seen some situations before in which mutual agreements have been reached for the benefit of the kids, and even for the marriages. There are things like one child spends a year with an Aunt back in the UK while the 'family' stays in the US to finish off an assignment. In your situation with your son looking at GSCEs this might be something to consider. There are other situations where a vacation is agreed to, in writing (i.e. "I will bring the kids back home on this date") and the family spends some time apart. There's also some tremendous therapeutic value it spending some time back home by yourself for a week or three seeing friends and old faces. While I don't know the particulars of your "trouble" there might be some counseling options here that, even if not fully successful, might tone down the ideas of 'revoking your passport and deporting you" kind of statements.

I guess my point is it doesn't necessarily have to be all legalistic. There might be some room for compromise. Of course your husband could be a wife-beater and have hidden your passports and I'm all off base, but you might also want to consider if there is a way to meet somewhat half-way in getting what you both want. And sorry if that ship has sailed, bridges burned, etc. but I did just want to throw this idea out there...

Re: Can I bring my (british), kids home without my husband's permission?
 

US courts usually claim jurisdiction for divorce and child custody if the couple have been resident in the state for more than six months. L1 visas typically last for several years. I'm no lawyer, but I think you may have difficulty claiming your habitual residence is in the UK when you live and work in the US and have the right to do so for an extended period of time. "Habitual" does not imply "permanence". I strongly advise the OP to get legal advice on this specific issue before doing anything.

Re: Can I bring my (british), kids home without my husband's permission?
 

So presumably you already have a fixed date to return to the UK, is this in the near future?

Also, if you are on secondment wouldn't your husband returning to the UK immediately mean a) he would lose his job b) potentially have to repay all the costs of moving you to the US back to the company. Both of which presumably would not be beneficial to you all as a family, together or seperated.

Re: Can I bring my (british), kids home without my husband's permission?
 

We were supposed to return next year. My husband now insists he wants to extend the visa and remain until 2015. There are other issues but that is the matter in hand.

To be honest I couldn't care less if he did have to pay the relocation costs, given he's threatened to have me deported.

Re: Can I bring my (british), kids home without my husband's permission?
 

He can't 'extend' the visa. A new one has to be applied for (typically the L1/L2 visas are issued for 3 years and the maximum time one can be resident on these visas in the US is 7 years (then one either has had to apply for a Green card or to leave the US for at least one year before coming back to the US on new visas).

If your spouse (and his employer of course!) wants to get new L1/L2 visas he - and you - need to to travel with the children outside the US to be 'interviewed' at a US Embassy (obviously taking in new photos, passports and fees, application, documents etc.) similarly to how you obtained your original L1/L2 visas.

How is he going to force you to go to the Embassy if you don't want to co-operate? (I'm not even sure if the Embassy would issue L2 visas to the children if you objected?)

Does your teenager want to go back to the UK in time for the GCSE course? How old are your other children?

As mentioned before, it's best to seek legal advice from someone experienced in international custody issues. There is a list of solicitors/lawyers practising in the US and UK on the http://www.reunite.org website, or to at least phone the Reunite advice line in Leicester.

http://www.reunite.org/lawyers.asp

(one of the lawyers, Jeremy Morley wrote this article with the title "The Plight of the Expatriate Spouse" below)

http://www.international-divorce.com...atriate-Spouse

PS: Bethenny - I strongly advise you to clear your cookies if you are doing research online, your spouse may be suspicious and checking up on your PC/laptop etc.

Re: Can I bring my (british), kids home without my husband's permission?
 

Ooooh - it's good that you've kept your house in the UK:

http://www.international-divorce.com...for-Expats.htm

Good Luck! :fingerscrossed:

Re: Can I bring my (british), kids home without my husband's permission?
 

You only need to attend the US Embassy if you leave the US and want to return to the US using the visa. You can legally apply and be granted your extenstion without having a new visa placed in your passport, the Embassy interview only becomes an issue once you leave US soil.

Re: Can I bring my (british), kids home without my husband's permission?
 

When did this happen?

Only about a year ago my friend (she's British, spouse Italian) and their daughter (born in the US) had to leave the US for their renewals of their L1 & L2 visas. However, they also applied for Advanced Parole at the same time; he travels overseas extensively for work and she likes to take their daughter to visit family in the UK and Italy two or three times a year.

(Other expat friends have also done so, but this was more than a year ago. I've had a GC for four years but the last time I renewed my L2 visa I had it done at the US Embassy in Grosvenor Square, London).

Ooops - I apologise; yes I recall that one can just have the approved paperwork for the renewed visa without a new physical visa to be issued in the passport. That was not an option we wanted to consider in case of a family emergency back in the UK and not being able to get back into the US. I think that every expat resident in the US should never assume that "oh, I have no need to leave the US on a trip" as one never knows what may happen - indeed I've seen on these boards the utter sadness of at least one expat who was unable to return to the UK for a parent's funeral. :(

We also applied for Advanced Parole - actually I remember having to go into Secondary inspection at Newark airport when I returned from a trip to the UK as I had the Advanced Parole form after we'd filed for the Green card.

Re: Can I bring my (british), kids home without my husband's permission?
 

By definition, you then change the facts of the case so that it would meet the legal definition. As the current status stands, I still don't think it meets the requirements of kidnapping.

Re: Can I bring my (british), kids home without my husband's permission?
 

But you end up being land locked without the visa in the passport, so if you left the US, would need to go to a US embassy to get the visa in the passport to return, which is handy for nothing else but emergency travel.

Either way, this issue goes way beyond a forum, divorce lawyer and immigration lawyer need to be talked too.

Good luck to the OP!