Here follows Jeremy’s comments:
Tuesday, September 24, 2013
Interview with Divorce.Co.NZ
Here follows Jeremy’s comments:
Jeremy do we have any idea how many people are affected by the exercise of relocating with children?
No one is collecting the statistics but as the world is shrinking international relocation is occurring with much more frequency. Most relocation is legal, approved or not contested.
Some of our site visitors who may be thinking about separating or already separated, may be considering relocating to cities or countries for work, family and support. Is there any rule of thumb?
Well you need to be a lawyer to give advice of course. The answer is also much too complicated and varies dramatically from jurisdiction to jurisdiction as to the extent to which courts permit it.
Most countries look at the best interests of the child but what that means, varies incredibly according to who the local judge is and what the local standards are. It is a function of predicting what a court would do based on what you think sounds reasonable in the circumstances. But countries like New Zealand and Australia will be extremely hard to relocate out of, whereas England is likely to be much easier.
Australian law was changed and the judges are interpreting the need to ensure that both parents have a continuing strong role in the life of the children as meaning that relocation strongly interferes with that goal.
Whereas England is much more amenable to looking at what is best for the primary caregiver because if the primary caregiver is happy then the kid is more likely to be happy. There have been some really nasty cases in Australia.
Can you give us an example of an Australian case?
A typical scenario is that an English girl falls in love with an Aussie, moves to Australia, has a baby and then discovers he is a jerk. The relationship terminates and she wants to go home to everything she has known in her life. But to the Australian courts will probably not allow her to take her child to live back home. If she does go home the English courts will send the child back to Australia and mum will obviously go back with her child and then she will be stuck in Australia feeling as if she is a prisoner. It happened to someone I know who is living in a remote part of NSW and it’s not fair but that’s the way the courts are there.
So that’s the outcome of the courts but how does it turn out for the mother? Does it affect her financially?
Yes absolutely. This particular person is living in a remote part of Australia. I think she’s got a job, but often they can’t get a job. She is lucky that her skills are international because she is a teacher. But most often it’s impossible for people living overseas to get a job at the same level because their qualifications may be based on qualifications that work at home but not in other countries.
What about the United States, how do courts view relocation?
American courts will look very carefully at what is best for the child based on what the mother’s and father’s circumstances are and looking at who has been providing most of the day-to-day care. If I am representing a mother in a USA court who wants to make a relocation application, then I ask her to prepare a complete dossier. A presentation book, showing what her plan is for the child to be in the new place; photographs of exactly where he will live and where he will play; photographs of the back yard and the nearby park; a map showing the place where she will be living and its relationship to the school; a brochure from the school showing how great it is; what she will do for a living back home; photographs of all the family; and so on. It should be an entire presentation contrasting the life that she currently has in this particular state in America versus the life that she expects to have with her baby or young child in the country to which she wants to relocate. Australia basically rejects it at the present time. I think it has to change because it produces great injustice.
Is New Zealand similar to Australia?
I deal with huge numbers of typically women, who just want to go home. They are the “trailing spouse,” they trail behind their husband as he moves to NZ, or they fell in love with him somewhere and he is from NZ and the deal was that they would settle there. When the relationship ends she is left with no network, family, no friends and sometimes no job.
This must have a huge emotional impact?
Emotionally they can be left with no sense of being a local. And suddenly they start to notice the bad things in the country and it becomes a downward spiral.
Is it different for applicants of older children than younger children in trying to relocate?
A child is free to relocate at the age of majority which varies from country to country. In reality the courts will allow it earlier if the child insists. The children’s point of view will be taken into account when they are a teenager or maybe a year or two before that depending on how mature they are. But it does often get easier when the child is a little older than a baby. It is easier for them to have visitation in the other country for long chunks of time. So that if mum goes back home to England for example, then an 8 year old can spend half the summer in NZ with dad and dad can come and visit once a year to England and they can talk every day on the webcam. You can have visitation for chunks of time that you can’t have with a young baby.
What are the real costs in getting a child returned if they are taken overseas?
Oh you can’t possibly answer that. I am sorry. It depends on what country. You have got to hire a lawyer in the country to which the child has been abducted. If the child has been abducted in England it is free because they give legal aid to everybody. If they have been abducted to America it is not free. It can be tens of thousands if not hundreds of thousands of dollars.
One thing that concerns me with local New Zealand law is existing Prevention Orders now have to be discharged for a parent to take the child for a holiday. It puts the burden of trust back on the parents.
It is a typical problem. If you are a parent and want to take the child away on a holiday, do you apply first? Or if you are the parent who is worried about the child being abducted do you need to go to court first?
I think you could take your children overseas on a holiday and say the other party verbally agreed. I wonder if there is anything here protecting the other or custodial parent.
Yeah it is dangerous, so the custodial parent has to be careful and perhaps not allow the non-custodial parent to have any of the child’s passports. It happens and often too late for parents that should have been more careful maybe. You often have to expect the worst in this kind of situation.
In terms of making private agreements, can people agree for the other spouse to take the child overseas? If it is a private written agreement will it stand in court?
A document that gives permission to one parent to take the child out of the country will prove that it was not a wrongful taking under the Hague Convention as consent to take the child away is a defence. So the defence is established if there is such a document, it can be a formal agreement or it can be an email. But in terms of it being a mutual promise whereby the parent who has taken the child promises to return the child within a certain period of time, then it is not effective. The left-behind parent if he or she has a concern that the child might not be returned, needs to have an agreement made into a court order for it to have any effect.
Does being de-facto or having a child from a fling with someone make any difference to your rights to relocate with your child?
Assuming that the father is acknowledged to be the father, the rest of it is all the same, marriage makes no difference. The only wrinkle comes into whether or not there has been an admission that is effective legally that dad isn’t the dad. Sometimes mum claims dad is dad but dad claims he is not the dad. That is a paternity question and if that is solved then, it doesn’t make any difference whether the parents are married or not.
We have a lot of immigration here, families from the UK, South Africa, Asian, USA, families relocating to New Zealand and Australia. Feasibly we get many cross cultural families coming here too. If a British woman married to a South African man relocated to NZ after which the marriage fails, how does a request for relocation work then?
Everything that I have said thus far about relocation, and burden of proof, applies regardless of nationality. So if they are residents of New Zealand regardless of where they come from, they and their children are residents of New Zealand.
So in your scenario if one of the parents want to go home wherever that may be, and if he or she does it without the consent of the other parent, it is kidnapping. To avoid that, he or she needs to make an application for relocation.
There is also the issue of how other countries view court orders.
There are 70+ countries who are parties to the Hague Child Abduction Convention. Japan does not adhere to the Hague Convention. A child will just about never come back if taken to live in Japan. Japan will never acknowledge or give any respect to the foreign custody order. China is probably the same. If it’s Hong Kong it’s totally different. It depends massively as to what country the child is taken to.
So where would we find out the status of countries with respect to the Hague Convention?
Most countries in the world are not parties to the Hague Convention. The US State Department website tells you which countries are compliant and not fully compliant. But then the rest of the world…there is no way to know, every case is unique and every country has weird rules and laws. What I do a lot of if the potentially left behind parent is worried is to check and see if they are a party to the Hague Convention, and if they are not do some research. If it was India in question we would talk to Indian lawyers, to find out what are the chances getting an Indian court to respect to a NZ court order. Then if they give respect will it be words or will it be effective. You end up then trying to show the NZ court that India will not in fact respect foreign custody orders.
Most of our judges here in the USA are so worried about offending other countries that they will usually not buy the evidence that a foreign country’s legal system is deficient. We have to lay it out in such great detail. It is hard to find to prove that if a child is taken to such-and-such a country the likelihood of him ever being returned is very low. Judges just don’t want to make an adverse ruling based on another country’s legal system.
What do you think that people should know that they don’t know?
I think that mothers are naive about following their heart without thinking through the consequences. Expats beware. What is really going to happen if your relationship breaks down? Do you realise that your child -- and therefore you -- can be stuck in a foreign country?
What if you went home to have your baby?
Country of birth doesn’t make any difference. If you have the baby at home the child’s habitual residence during that period of time it its home. However, if you then live in a foreign country the child’s habitual residence may quickly change to that new location. If you take your child back to your home country because you have had a fight with your husband and your home country is a party to the Hague Convention, your home country will most likely send the child back to the habitual residence and you presumably will follow. Most likely you will feel that you have been sent to jail.