Expats with Children
… Top Tips from an International Family Lawyer
By Jeremy D. Morley*
- Before you move overseas, you absolutely must realize, understand and fully evaluate the fact that, if you are in a new country with a child, you may find yourself trapped there indefinitely if the other parent refuses to let you take the child back to your home country.
Here are just some of the relevant factors:
- In some countries, it is easy for one parent to obtain an order that bars the other parent from leaving the country with their child. Middle East countries often have such procedures.
- In other countries, one parent may not leave with a child without the written and notarized authorization of the other parent. Most Latin American countries have such requirements and very strong exit controls.
- Almost 100 countries, including the United States, have adopted the Hague Convention on the Civil Aspects of International Child Abduction. It provides that if you take the child away from his or her country of habitual residence in breach of the other parent's rights, and without that parent's clear consent, you will have “wrongfully removed” the child. You will then normally be ordered to return the child immediately to the place where the other parent lives.
- Courts in the United States are most often required to “rubberstamp” initial child custody orders issued by foreign if the child had been living for six months before the case was commenced. In these circumstances, a U.S. court must usually enforce the terms of the foreign court order, even if you believe that the foreign order is unfair, even if you have suffered domestic violence, and even if an American court would have provided you with a more favorable result.
- In many countries, it will be a criminal offense for you to take your own child away, without the other parent's permission, from the country where you and the child have been living (just as it would normally be a crime if a parent were to unilaterally remove a child from the United States).
Example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus hasn't work out for Angie. In fact, she absolutely hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention, Angie will be in big trouble if she takes the child back to the States without Gus' permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she's stuck there.
Another example: Eddie the Egyptian persuades Abigail the American to take their children to visit his family in Cairo. He assures her that they'll be back home in Missouri in a couple of weeks. On the plane he takes everyone's passports and then laughs at her and tells her that he fooled her, and that she should return to America but he's keeping the kids in Egypt. Our Egyptian colleagues tell us that effective legal relief in that country is probably impossible. (She eventually escapes with the children, but that is only because of her amazing self-help, a lot of luck and some U.S. Embassy help).
- Foreign courts, not U.S. courts, probably have jurisdiction. When you go overseas you will probably be subjecting all issues about child custody to the courts of the foreign country. There are complex rules about international custody jurisdiction under the laws of each American state – as to which you will need to consult with knowledgeable counsel – but usually the American courts will defer to the foreign courts if your family has relocated overseas. And in any event, none of that usually matters to a foreign court, which is governed by the jurisdictional rules of its own legislature. In most countries, once you're habitually residing there, the local courts have jurisdiction to handle the case.
- Foreign law usually applies.Some people think that when they go away their American citizenship somehow travels with them and provides a cloak of protection concerning child custody matters. Usually that is absolutely wrong. You need to assume that when you are in Rome you must do as the Romans do .. and that when you are in Saudi Arabia, Saudi law will govern. Most countries apply their own domestic law to child custody matters, even if all of the family members are foreigners. And in the minority of countries that apply the law of the parents' common nationality to custody issues you need to understand that the foreign court will probably have great difficulty in understanding and applying the law of your local American state and might well have great reluctance to apply it in any similar way.
- The law in real life is not the law on the books. Most of the laws about child custody and parental rights that are on the books in countries around the world read well. But there can obviously be all the difference in the world between the law as it is written and the law that is actually applied. China has rules about divorce jurisdiction that do not seem to be applied in cases concerning foreigners. Japanese family court orders are invariably unenforceable. The Japanese Civil Code has innocuous provisions about child custody that disclose nothing about how cases there are really conducted. India has a law to prevent cruelty to wives that is frequently used – in a process described by the Supreme Court of India as “legal terrorism” - to arrest their husband's family members on the basis of trivial or concocted charges, and to deter their husbands from returning to India. Obtaining strategic and experienced advice about these matters is usually absolutely essential.
Example: Adam the American is married to Junko from Japan. They move with their two children from New York to Tokyo. One day he raises his voice at her for a trivial reason. When he returns home that evening he is locked out. He consults with counsel in Japan and learns that, since Junko has physical possession of the child, she is the de facto sole custodial parent. He commences a court case and learns that he must undergo mandatory mediation. After four unproductive sessions, each spaced two months apart, he finally realizes that he will be unable to see his children again except at best for a monthly 2-hour daytime supervised visit. He abandons the case and eventually returns to live in the U.S.
- The Hague Convention won't protect you. Just because the foreign country has signed the Hague Abduction Convention does not mean that the courts there will be ready, willing or able to help you. There are no provisions in the Convention that will help you if you are arguing with the other parent about custody matters. And, as stated above, the Convention may bar you from taking your child to your home country.
- An American court order may not count. Just because you have a clear court order from a U.S. court that supposedly gives you protection and provides clear rules about who has the kids and at what periods of time, you're far from guaranteed that the terms of the order will be respected overseas. The rules about recognition and modification of custody orders overseas are usually entirely different from the rules in the United States. The provisions of our Uniform Child Custody Jurisdiction & Enforcement Act are not paralleled in foreign countries. Very many countries have no requirement or practice of applying foreign custody orders. And the courts in almost all foreign countries are empowered under their own laws to modify foreign custody orders once a child is habitually resident in the foreign country, which can occur quite quickly.
Example: A court in Germany will have the right to modify a foreign custody order as soon as the child is habitually resident there. And under E.U. rules, which apply in Germany, a child is normally “habitually resident” there as soon as he or she is there with merely “some degree of being settled.”
Further example: Courts in India often state that they will grant comity to foreign custody orders if it is appropriate to do so, but they must first be satisfied that doing so is in the best interests of the children. And in 2017 the Supreme Court of India ruled that it was inherently preferable for a child to live in India with his grandparents and extended Indian family than to live in the United States with his loving mother (upon whom no negative aspersions were cast in the judgment) and his younger brother.
- Beware of exit controls. The United States has no exit controls. With minimal exceptions, no one checks whether you have a legal right to remove a child. But the same is not true overseas. For example, you cannot take your child out of most South American countries without a notarized document establishing that the other parent has consented or a local court order.
- Beware of visa rules. You can't normally stay overseas or re-enter the foreign country without complying with the correct local residency requirements. This can be a terrible problem if the other parent has control of your status and therefore owns the virtual “key to the door.” Example: A Saudi father agreed that his wife could leave Saudi Arabia for a family visit to the States. She left their child temporarily in Riyadh. While she was away he divorced her in Riyadh and canceled her visa. She could never return. He had the child and she was powerless.
- Beware of local laws and customs. In many countries a parent's conduct that may be acceptable in the United States may be frowned upon or even criminal elsewhere and engaging in any activities that could be deemed to be inappropriate could adversely affect your rights to custody or even access to your child.
Example: A client's husband accused her of adultery -- and worse -- in Dubai. Knowing the extreme seriousness of the charges in the UAE, we recommended that she leave Dubai that night without her young child, who was in the husband's possession. (We later used other methods to help retrieve her child).
Further example: A foreign father who acts impatiently at a mediation session in Japan, or who is seen as having raised his voice at his wife, will then likely be viewed extremely negatively and his chances of obtaining any access to his child will be significantly reduced.
- If you make a deal with your husband or wife that you're going overseas just for a trial and that you'll return if it doesn't work out – get it in writing! Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may very well not work. A foreign court handling your child custody case may state that it doesn't care what your deal with was with the other parent; it must only consider what it thinks is best for the child. It is critical to obtain reliable competent legal advice from experienced international family law counsel before going overseas in reliance on the other parent's promises.
- Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So, if you are a “trailing spouse,” consider the following:
- Don't sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly, it will indicate that it continues to be your “domicile” (the place you live in indefinitely, which remains as your domicile even if you move temporarily to another place). Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move “back home.”
- Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.
- Keep your network of friends and family at home. Stay in touch with them. Visit them if possible. Make sure that your children develop strong contacts with them, whether by visits in your new country, visits back home, or through online video.
- If you're overseas and are “planning” to get divorced, be as strategic as possible. Plan your moves. Consult with someone who really understands the big picture in these cases. Figure out where it's best for you to be at the time you tell your soon-to-be-ex that it's all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don't leave without the evidence. It's very frustrating when a client claims that the other spouse engaged in gruesome physical abuse and shameless hiding of marital assets but that the evidence was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.
- If you're feeling stuck overseas and have children with you, don't just bolt for the (airplane) door with the kids and run “back home” to the States. Plan things out first. If you take the kids, you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you may well be forced by an American court to return your child – and then, to completely add insult to injury, you'll probably have to pay your spouse's legal fees and travel expenses as well as your own. Then, when you return overseas, your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult with knowledgeable international family law counsel sooner, rather than later.
- On the other hand, if it's your spouse who's feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing in advance. Some are pretty obvious: be kind; be understanding; and don't stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she's making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.
- If you're overseas and pregnant, and not 100% confident that you'll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child's “habitual residence” for purposes of the Hague Convention will likely be Sweden or Saudi Arabia – and that can create terrible problems if you want to take your baby “back home.”
- Don't assume that the local authorities won't help. So many times, expats feel that the local social welfare agencies won't understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent, and you should try them. Plus, an American court in a Hague Convention case won't accept your defense that returning a child to the foreign country will put the child in “grave risk of harm” unless you can show that the foreign support services are unable to provide the needed protection.
- Consult with an experienced international family lawyer. You need to plan strategically but you cannot do that without knowing the basic facts.Local family lawyers may not be your best bet. There is just so much wrong information out there about these issues. It is absolutely shocking how many clients have previously been given poor advice that is often not only mistaken but also damaging. An experienced international family lawyer, who consults with local lawyers as appropriate, can give you much more objective “big-picture” advice and, most critically, can assist you in creating the best strategies.
* Jeremy D. Morley may be reached at 212-372-3425 and through his website, www.international-divorce.com. Jeremy has written the leading U.S. treatises on international family law. He consults on international family law matters with clients around the world, always working with local counsel as appropriate.