Mummy in the foothills

Don't count on it. One of the ladies I know here is from Spain, her cheating lying ex convinced the court that she would up and leave taking his sons to Spain to live and he wanted full custody to stop this. They gave it to him along with the childrens passports, she had no intention of going anywhere other than holidays and remarried to another US citizen so don't count on custody to the woman men get full custody sometimes.
If she gave birth and was living in UK that childs primary residence is UK as he hasn't even lived anywhere else.

Steve_

Well of course don't count on it, that's why I said "generally", it depends on the circumstances, but there is no advantage I'm aware of having it decided by a British rather than American court. Cheaper lawyers maybe.

Ash UK/US

Once the baby comes along it will still be a lot more difficult on her trying to leave the US with the baby, even if he comes after her for custody legal proceeding would be more difficult/time consuming/expensive if he has to move his game of play to the UK.

penguinsix

You've hit on some good points--where does she want to stay long term. We don't know that yet and it is rather relevant to the whole discussion. There is also the issue of which system might be better given that they both have rights in each country's courts. And yes, Convention, not Act. Not sure where my brain was when typing that.

We do know though if her relationship crumbles (and her job crumbles) that she will likely be out of a visa here in the USA, which complicates things quite a bit.

For example, a hypothetical:

She has the baby in the USA. She loses her job and the husband refuses to sponsor her for a visa. The baby is not an 'anchor'--it will not keep her vs. the US immigration system. She is deported and the child may remain with the father. A US court hearing the custody dispute would have to choose a) unemployed mother heading overseas to a country the child has zero ties with and denying husband of any custody or chance to be with child or b) employed husband in USA with US citizen child maintaining connection with father but not with mother. Even a joint custody decision in the US would be difficult as she may have a problem exercising her rights both logistically and visa-wise. You'll also likely to have a bit of US-centric bias in the courts to deal with.

By heading to the UK before the birth, she can keep her options open. I think UK courts award mothers custody more than in the US (in the US men get sole custody about 17% of the time, and joint custody somewhere between 30-50% of the time, with the mother getting sole custody the remainder). In the UK I think the numbers are a bit better for the mother, and even if he did get joint custody the practical arrangements over two countries would be difficult. You are correct that as the parent he will have rights in the UK, but it will be complicated and expensive for him by the logistics of handling of custody dispute in the UK whilst being located (physically) in the USA. He may also end up in a situation of joint custody in the UK, but unable to exercise that right due to his visa status in the UK. I also think the chances of a father being given sole custody by a UK court to be fairly low, especially if the father is not resident in the UK [note I just did a quick search but can't find reliable numbers. One site say UK fathers get sole custody only 7% of the time, but I didn't trust the website]. He'll also have to deal with a UK-centric bias in the courts, just opposite of what he would have in the US.

Legally there is going to be a hearing in one country of the other, and both parents have some rights that will need to be dealt with. But with the practicality of visas, logistics of handling an overseas case, and potential 'national' biases amongst the courts, there might be a better option to have such a heading in the UK rather than the US. I also think the chance of a sole custody arrangement for the husband is greater in the US than the UK.

Now, for my REAL THOUGHTS...

As a professional expat and a father and a husband, my real view is that things are probably a bit tenser than they need to be. The OP is pregnant (+1 on the stress meter), feeling sick (+1 stress and homesickness), not happy in her job's medical leave (+1 stress and homesickness) and currently in the hospital (+5 stress and whatnot). The husband was just informed she wants to leave the country and deliver their baby overseas, possibly without any consultation on his part, and he lashed out rather abruptly (+10 stress).

You can always "go to the mattresses" in these sort of things and pull out the laws and rules, as outlined above. I think being an expat in a foreign land with different legal structures and culture sort of make people a bit more wary and defensive when it comes to dealings with the legal system However, in many cases like this, a more reasonable solution can be obtained through discussion and negotiation amongst the parties. It might be very possible, despite the initial rather visceral response of the husband, to have him agree to delivering in the UK as it may improve the mental and even physical health of the mother. Perhaps if he was told about the benefits of family leave and the support network of her family over there he might be more agreeable. I hope the two of them continue to talk and perhaps find some common ground on this matter so they can move forward to the true insanity of being a parent that is yet to come.

Good luck with the tough decisions ahead.

<disclaimer: I am a lawyer, but do not practice law. Please rely on your own legal counsel for any legal decisions you make. I write iPhone apps, not international custody arrangements>

Lion in Winter

In the state where I live at least, the presumption is that joint legal custody should be awarded unless one of the parents can convince/prove to the court that the other parent should not have legal custody for reasons to do with the welfare of the child. So how one spouse treats the other is irrelevant. All that is relevant is how each parent treats the child. One parent may get physical custody - ie the child lives mostly with that parent while the other gets legally agreed-upon time with the child, but legal custody belongs to both parents, and that means that the child cannot even live in another State in the same country without the agreement of both parents.

Steve_

I don't think it would be. The Children Act defines the criteria for parental responsibility over a child. One of them is marriage, they're married, case over. Relatively simple and probably cheaper than it would be in the US. Custody arrangements would be similar, it's more the practical issue of distance that would stop him. Which from the sounds of it is what he was worried about to begin with, which a reasonable concern for any parent to have.

Beccarose

I'm curious how things are going now and hope the OP comes back.

This concerns me. If it's something like preterm labor, she won't be able to fly anyway. It was never said what sort of pregnancy problems she is having, I am just making assumptions/generalizations. But regardless of the problems, I wonder if she is ever well enough for such a journey....

The quote about going back to the UK "until the baby is born" also concerns me, there will be a long process to come back should she lose her work visa- which she would do if she left for the UK to have her baby.

Those being said, *I* would personally do everything in my power to get back to the UK before the baby is born, if I found myself in her situation.

Ash UK/US

Assuming it all straight forward (which is not all ways the case, I work with 2 woman who are going through custody issues and they have been back and forth to court numerous times). He would still have to travel to the UK, taking time off work, paying travel expenses, accommodation expenses and I am guessing he would not qualify for any legal (financial) legal assistance. It is not like he can take a day off here and there when he needs to go to court.

Steve_

But on the other hand it's not clear he needs to even appear in court, and a solicitor would likely be cheaper in the UK. All he needs really is proof they're married and the child is his. Solicitor appears in court, documentation is valid, parental responsibility is his. It's totally clear cut. Custody arrangements would be more complex but I doubt it would turn out any different, plus he's got the additional argument that she fled.

Anyway my general point is that it is not clear cut that going back to the UK makes sense, not from a legal perspective. You can't automatically make the assumption that he's broke, stupid and can't get time off work, maybe he is, maybe he isn't.

From a practical standpoint obviously the distance would be a factor in seeing his child, but that's going to be the case if they're happily married and have no problem between them at all, but have to be away from each other for some reason.

Ash UK/US

I, like you, can only read between the lines of the OP. I am not automatically assuming he is broke but it does say so I am assuming that they are not independently wealthy and working for fun. It is common knowledge that for the most part paid vacation is minimal in the US, in my company for the most part FMLA is unpaid.

I know people on both sides of the pond have custody issues and they have had to go to court in person. If she were to dig her heels in an be awkward it would not be so clear cut and it could be drawn out.

Again this is all speculation, it seems the OP has abandoned her post, hopefully they have patched it up and figured it out.

Desdemona

I am with Rete on this one. I would totally understand where my husband was coming from if he raised objections to my leaving the country without him at such a critical juncture. If there is true love and understanding between husband and wife such a situation would not even arise. There is more to this conundrum than meets the eye. The fault lies on both sides, I don't think either one of them is thinking of the feelings of other. The marriage itself looks like it's in trouble.
So the smart thing to do is just leave and have her baby in the UK if in fact the marriage itself is in trouble. Maybe they could talk about it at a later point and then decide if they want to go on with the marriage or not.

MsElui

I just say again, would any mother take the chance that they may have no legal right to live in the country that their child resides in.

fatbrit

^^^^^THIS^^^^^^^

Speedwell

That x 1000000.

Folks, please remember the OP said she was in the hospital. That may be why she hasn't come back. I hope she's doing well.

Desdemona

On the other hand, she may have already left for the UK