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

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

Old Oct 13th 2011, 12:36 am
  #16  
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by penguinsix View Post
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.
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.

Last edited by JAJ; Oct 13th 2011 at 12:55 am.
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Old Oct 13th 2011, 12:37 am
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Default 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.
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Old Oct 13th 2011, 12:41 am
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by Bethenny View Post
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.
IMO you need to seek expert legal advice and an internet forum isn't the place to get it. Good luck.
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Old Oct 13th 2011, 1:12 am
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Default 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).
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Old Oct 13th 2011, 1:21 am
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Default 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?
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Old Oct 13th 2011, 1:31 am
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by penguinsix View Post
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.
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.
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Old Oct 13th 2011, 2:02 am
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by JAJ View Post
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.
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.

Last edited by penguinsix; Oct 13th 2011 at 7:39 am.
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Old Oct 13th 2011, 2:29 am
  #23  
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Default 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.
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Old Oct 13th 2011, 2:38 am
  #24  
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by Michael View Post
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.
I don't think this situation meets with the legal definition of kidnapping...
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Old Oct 13th 2011, 3:04 am
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by Michelmas View Post
I don't think this situation meets with the legal definition of kidnapping...
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.
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Old Oct 13th 2011, 3:17 am
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Default Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by Michelmas View Post
I don't think this situation meets with the legal definition of kidnapping...
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.
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Old Oct 13th 2011, 3:54 am
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Default 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.
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Old Oct 13th 2011, 9:21 am
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Default 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.
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Old Oct 13th 2011, 12:35 pm
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Post Re: Can I bring my (british), kids home without my husband's permission?

Originally Posted by Bethenny View Post
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.
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!
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Old Oct 13th 2011, 2:20 pm
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Default 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.
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