Posts
Jeremy
D. Morley
International child relocation applications raise
substantially different issues from those raised in domestic relocation cases,
whether intrastate or interstate. Unfortunately, the fundamental differences
are not often adequately appreciated by lawyers and judges. This is partly
because both domestic and international applications are governed by the same
legal principles. It is also because, even in today's globalized world,
international relocation applications are relatively unusual.
A key difference between international and domestic cases concerns the nature of the applicant. Parents who apply for international relocation have fundamentally different circumstances, concerns and needs than do parents who want to relocate domestically.
A second critical difference is that while sister states have similar laws and legal systems, the legal systems in foreign countries vary dramatically in their recognition and effective enforcement of U.S. custody and access orders. This factor will be the subject of a subsequent article.
SPECIAL CIRCUMSTANCES OF THE APPLICANT
Expatriate parents who seek to relocate internationally with their children typically share similar experiences and challenges, which need to be better understood by lawyers who act as their advocates and by judges who decide the fate of their children. (This article does not cover applications by American parents who wish to move overseas for love or work). In my experience, based on counseling very many expats in family crises, applications by expats for international relocation are usually made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In an article such as this, there is no way to avoid making generalized observations. The purpose is not to stereotype people, but to promote better understanding of their circumstances.)
The Trailing Spouse
A "trailing spouse" is one who accompanies her husband on an assignment to a foreign country, usually for a limited number of years. The husband has usually achieved significant success in his career and is pleased to improve his situation by making an international move. It is a situation that is often fraught with danger for the trailing spouse.
A typical scenario might be as follows: H and W are Germans and have lived in Germany for all of their lives. H works for a technology company and W is a teacher. They have a two-year-old child (C). H is offered a promotion conditional on his moving to New York for a four-year assignment. W is excited about the prospects of living in the Big Apple but is sad that she will have to leave her teaching job.
Three years later their entire world has changed. H is thrilled with his assignment, loves his job, thrives on being independent of head office and has adapted well to life in New York. His "only" problem is that W is having an entirely different experience.
W is lonely, isolated and miserable. She does not work and is upset that her German teaching qualifications are not transferable to the U.S. She misses her family and her friends in Germany. She has experienced far more culture shock than she expected. While her language skills are reasonably good, she is finding that English is far more difficult than she realized. She has no one to complain to -- except H, and when she does, H becomes increasingly impatient.
The relationship between H and W has spiraled downward. H comes home later and later. He ultimately has an affair and a divorce and custody case ensues. H announces that he wants to stay in New York, while W wants to go back home to Germany with C, who is now a happy and healthy five-year-old. W is shocked that H refuses to allow her to take C back to Germany. She feels that he cheated her by dragging her to a foreign country and then refusing to allow her to return home with her child. She is furious that he does not appreciate the sacrifices that she has made for his career, that he has broken his vows of fidelity, and that he is shockingly compounding his betrayal by forcing her to live in an alien country without support, family, friends or career.
In court, H opposes relocation on the grounds that C has lived most of his life in New York; all of C's friends are in New York; and C is thriving there, except for the fact that W is moody and silent. H contends that W is being selfish in wanting to take C away from his father to Germany, a place that C does not remember, and away from everything that C knows in his home in New York. H's argument is compelling and often is the winning one, especially if the focus is on C to the exclusion of W. While the court may acknowledge that a happy mother is a better mother, the court often gives more weight to the fact that the couple and their five-year-old child have spent three years in New York.
The Romantic Expat
A "romantic expat" is someone who moves from his or her home country for romance. Perhaps H from Chicago meets W in Japan and convinces her to marry him and move to Illinois. They have a baby, C. Life in Illinois is not what W expected. Americans are "rude, pushy and inconsiderate." Public transportation in Chicago is inconvenient and unpleasant, and she is scared to drive on the busy roads. She has made no friends except for a couple of Japanese women who were on temporary assignment with their spouses and who have been fortunate enough to have gone back home to Japan. She misses her family and friends and finds it hard and stressful to speak in English. She worries that C is being raised as an American and not as a Japanese.
Inevitably the marriage breaks down, and W wants to go back home to Japan with C, who is now aged three. She is shocked when H insists that she cannot do so; after all, she came to this country only because of H and now that he has "let her down," she cannot understand why he wants to keep her a prisoner here.
In court, H presents all of the arguments that the husband in the previous "trailing spouse" scenario presented, with the additional factors that: 1) C has lived his entire life in the U.S.; 2) relocation will remove C not only from H but also from H's family, with whom C has become attached; and 3) Japan has only recently become a party to the Hague Abduction Convention, does not enforce foreign custody or access orders, does not endorse shared parenting and does not effectively acknowledge a foreign father's right to play a significant role in the life of his children.
Holdover Expats
A "holdover expat" is one who left his or her home country for a temporary period of time, perhaps coming to the U.S. to study or on a work assignment. After some years here he or she has a love affair in the U.S. and decides to stay here.
Perhaps W is from Colombia, came to study in Florida intending to return home when she had a degree. After a couple of years here, she met and married H who asked her to stay in Florida. Their child, C, is two years old when they decide to divorce. Again, W wants to go back home with C, but H is opposed to relocation. H uses the same arguments as the husbands used in the two prior scenarios, but with the added factor that W was already living in the U.S. when H met her and has lived in the U.S. for a longer period of time than the other wives.
TYPICAL JUDICIAL RESPONSE
In all three scenarios, H's arguments are compelling and they often succeed, especially if the focus is on C, to the exclusion of W. As mentioned above, while the courts may acknowledge that a happy mother is a better mother, that consideration is typically trumped by the fact that C lived or remained in the U.S. The courts will focus on the "best interests" of the child without fully appreciating the drastic impact that the mother's unhappiness and often justifiable bitterness will have on the child's well-being. Not only are the mother's concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy and obsessive. In each scenario the mother is the primary caregiver. She is the one who is typically required to choose between abandoning her child and abandoning her family, friends, career and culture in her home country. It is difficult not to feel great sympathy for her predicament, especially if she is the one who has been abandoned.
RESULTS OF DENIAL OF RELOCATION APPLICATION
Denial of an application for relocation can have severe and devastating consequences. A typical downward spiral is as follows:
A key difference between international and domestic cases concerns the nature of the applicant. Parents who apply for international relocation have fundamentally different circumstances, concerns and needs than do parents who want to relocate domestically.
A second critical difference is that while sister states have similar laws and legal systems, the legal systems in foreign countries vary dramatically in their recognition and effective enforcement of U.S. custody and access orders. This factor will be the subject of a subsequent article.
SPECIAL CIRCUMSTANCES OF THE APPLICANT
Expatriate parents who seek to relocate internationally with their children typically share similar experiences and challenges, which need to be better understood by lawyers who act as their advocates and by judges who decide the fate of their children. (This article does not cover applications by American parents who wish to move overseas for love or work). In my experience, based on counseling very many expats in family crises, applications by expats for international relocation are usually made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In an article such as this, there is no way to avoid making generalized observations. The purpose is not to stereotype people, but to promote better understanding of their circumstances.)
The Trailing Spouse
A "trailing spouse" is one who accompanies her husband on an assignment to a foreign country, usually for a limited number of years. The husband has usually achieved significant success in his career and is pleased to improve his situation by making an international move. It is a situation that is often fraught with danger for the trailing spouse.
A typical scenario might be as follows: H and W are Germans and have lived in Germany for all of their lives. H works for a technology company and W is a teacher. They have a two-year-old child (C). H is offered a promotion conditional on his moving to New York for a four-year assignment. W is excited about the prospects of living in the Big Apple but is sad that she will have to leave her teaching job.
Three years later their entire world has changed. H is thrilled with his assignment, loves his job, thrives on being independent of head office and has adapted well to life in New York. His "only" problem is that W is having an entirely different experience.
W is lonely, isolated and miserable. She does not work and is upset that her German teaching qualifications are not transferable to the U.S. She misses her family and her friends in Germany. She has experienced far more culture shock than she expected. While her language skills are reasonably good, she is finding that English is far more difficult than she realized. She has no one to complain to -- except H, and when she does, H becomes increasingly impatient.
The relationship between H and W has spiraled downward. H comes home later and later. He ultimately has an affair and a divorce and custody case ensues. H announces that he wants to stay in New York, while W wants to go back home to Germany with C, who is now a happy and healthy five-year-old. W is shocked that H refuses to allow her to take C back to Germany. She feels that he cheated her by dragging her to a foreign country and then refusing to allow her to return home with her child. She is furious that he does not appreciate the sacrifices that she has made for his career, that he has broken his vows of fidelity, and that he is shockingly compounding his betrayal by forcing her to live in an alien country without support, family, friends or career.
In court, H opposes relocation on the grounds that C has lived most of his life in New York; all of C's friends are in New York; and C is thriving there, except for the fact that W is moody and silent. H contends that W is being selfish in wanting to take C away from his father to Germany, a place that C does not remember, and away from everything that C knows in his home in New York. H's argument is compelling and often is the winning one, especially if the focus is on C to the exclusion of W. While the court may acknowledge that a happy mother is a better mother, the court often gives more weight to the fact that the couple and their five-year-old child have spent three years in New York.
The Romantic Expat
A "romantic expat" is someone who moves from his or her home country for romance. Perhaps H from Chicago meets W in Japan and convinces her to marry him and move to Illinois. They have a baby, C. Life in Illinois is not what W expected. Americans are "rude, pushy and inconsiderate." Public transportation in Chicago is inconvenient and unpleasant, and she is scared to drive on the busy roads. She has made no friends except for a couple of Japanese women who were on temporary assignment with their spouses and who have been fortunate enough to have gone back home to Japan. She misses her family and friends and finds it hard and stressful to speak in English. She worries that C is being raised as an American and not as a Japanese.
Inevitably the marriage breaks down, and W wants to go back home to Japan with C, who is now aged three. She is shocked when H insists that she cannot do so; after all, she came to this country only because of H and now that he has "let her down," she cannot understand why he wants to keep her a prisoner here.
In court, H presents all of the arguments that the husband in the previous "trailing spouse" scenario presented, with the additional factors that: 1) C has lived his entire life in the U.S.; 2) relocation will remove C not only from H but also from H's family, with whom C has become attached; and 3) Japan has only recently become a party to the Hague Abduction Convention, does not enforce foreign custody or access orders, does not endorse shared parenting and does not effectively acknowledge a foreign father's right to play a significant role in the life of his children.
Holdover Expats
A "holdover expat" is one who left his or her home country for a temporary period of time, perhaps coming to the U.S. to study or on a work assignment. After some years here he or she has a love affair in the U.S. and decides to stay here.
Perhaps W is from Colombia, came to study in Florida intending to return home when she had a degree. After a couple of years here, she met and married H who asked her to stay in Florida. Their child, C, is two years old when they decide to divorce. Again, W wants to go back home with C, but H is opposed to relocation. H uses the same arguments as the husbands used in the two prior scenarios, but with the added factor that W was already living in the U.S. when H met her and has lived in the U.S. for a longer period of time than the other wives.
TYPICAL JUDICIAL RESPONSE
In all three scenarios, H's arguments are compelling and they often succeed, especially if the focus is on C, to the exclusion of W. As mentioned above, while the courts may acknowledge that a happy mother is a better mother, that consideration is typically trumped by the fact that C lived or remained in the U.S. The courts will focus on the "best interests" of the child without fully appreciating the drastic impact that the mother's unhappiness and often justifiable bitterness will have on the child's well-being. Not only are the mother's concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy and obsessive. In each scenario the mother is the primary caregiver. She is the one who is typically required to choose between abandoning her child and abandoning her family, friends, career and culture in her home country. It is difficult not to feel great sympathy for her predicament, especially if she is the one who has been abandoned.
RESULTS OF DENIAL OF RELOCATION APPLICATION
Denial of an application for relocation can have severe and devastating consequences. A typical downward spiral is as follows:
- The mother feels that she
is imprisoned in this country.
- The mother considers
abducting the child.
- The father increasingly
fears that the mother will abduct the child.
- Each parent tries to
increase his or her control over the child.
- The mother takes steps to
take the child to her home country.
- The father makes an
emer-gency application to court to prevent abduction.
- The court issues an order
pre-venting the mother from leaving the jurisdiction.
- The relationship between
the parents is completely destroyed, to the substantial detriment of the
child.
The consequences may then
include: parental alienation; criminal child abduction; Hague Convention
litigation; enormous expenditures on legal fees; parental inability to agree on
anything; and increasing police and judicial intervention, all of which cause
awful consequential damage to innocent children.
A PLEA FOR UNDERSTANDING
There is no quick and easy solution to these problems. However, a starting point is to understand better the plight of the expatriate spouse. In my experience, clients who wish to return to their country of origin in situations such as these often find that their lawyers and, therefore, the courts, do not adequately appreciate the extent of their plight and the merit of their cases. Many such spouses complain with justification that they are treated as difficult, uncaring or crazy, even by those who are supposed to be helping them. It is essential to understand what it is that these people are going through and to appreciate -- and communicate effectively to the court -- that their responses are the natural and typical consequences of the situations in which they have been placed.
Such understanding exists in the business world, where it is commonly accepted that spouse/partner dissatisfaction and other family concerns are the most significant cause of "expatriate assignment failure" -- defined as "the inability of an expatriate to perform effectively in a foreign country and, hence, the need for the employee to be fired or recalled home. See, e.g., Relocation Trends Surveys, a wide-scale, yearly report issued since 1993. International companies now devote substantial resources to what I have termed the "plight of the expatriate spouse." The legal system should encourage similar understanding.
A POSSIBLE SOLUTION
In many of the cases with which I have dealt -- representing mothers and fathers, both expats and local natives -- it would have been far better if the parties had agreed -- or if the judges had ordered -- a fair, appropriate and enforceable compromise solution.
If the other country has a developed and effective legal system, child custody laws that reflect a similar philosophy to ours, and strong laws to prevent international child abduction, an appropriate solution might include the following terms:
A PLEA FOR UNDERSTANDING
There is no quick and easy solution to these problems. However, a starting point is to understand better the plight of the expatriate spouse. In my experience, clients who wish to return to their country of origin in situations such as these often find that their lawyers and, therefore, the courts, do not adequately appreciate the extent of their plight and the merit of their cases. Many such spouses complain with justification that they are treated as difficult, uncaring or crazy, even by those who are supposed to be helping them. It is essential to understand what it is that these people are going through and to appreciate -- and communicate effectively to the court -- that their responses are the natural and typical consequences of the situations in which they have been placed.
Such understanding exists in the business world, where it is commonly accepted that spouse/partner dissatisfaction and other family concerns are the most significant cause of "expatriate assignment failure" -- defined as "the inability of an expatriate to perform effectively in a foreign country and, hence, the need for the employee to be fired or recalled home. See, e.g., Relocation Trends Surveys, a wide-scale, yearly report issued since 1993. International companies now devote substantial resources to what I have termed the "plight of the expatriate spouse." The legal system should encourage similar understanding.
A POSSIBLE SOLUTION
In many of the cases with which I have dealt -- representing mothers and fathers, both expats and local natives -- it would have been far better if the parties had agreed -- or if the judges had ordered -- a fair, appropriate and enforceable compromise solution.
If the other country has a developed and effective legal system, child custody laws that reflect a similar philosophy to ours, and strong laws to prevent international child abduction, an appropriate solution might include the following terms:
- Requiring extremely
generous visitation of C with H;
- Requiring daily Internet
contact, with webcams, between H and C;
- Providing for joint
decision-making between H and W as to all important matters affecting C;
- Requiring W to obtain an
order from the court in her home country that mirrors the terms of the order in
H's jurisdiction, that acknowledges that the court in H's jurisdiction has
continuing exclusive jurisdiction concerning all matters as to C's custody and
visitation, and requiring the appropriate authorities in W's home country to
enforce such orders; and
- Imposing a significant
penalty on W if she fails to comply with the order, including a severe
financial penalty. This might take the form of a substantial bond or a
reduction or suspension of financial support. Or a substantial portion of the
assets being divided upon divorce might be held in escrow.
Such a solution is far from perfect, but it would often
be far better than the present policy in many courts of routinely denying most international
relocation applications even in compelling cases.
EXPERT TESTIMONY ESSENTIAL
Expert testimony as to the laws and practices of the
foreign country concerning international child custody is generally absolutely essential
in such cases.
-----------------
Jeremy
D. Morley handles international child custody cases globally, always acting
with local counsel as appropriate. He also frequently appears as an expert
witness in courts in the United States, Canada and Australia on international
child custody matters. He has provided expert evidence as to the international
child custody law and practice of many countries, including Brazil, Bulgaria,
China, Colombia, Czech Republic, Egypt, England, France, Germany, India,
Indonesia, Italy, Japan, Jordan, Kuwait, Lebanon, Malaysia, Mexico, Morocco, Pakistan, Poland, Qatar, Russia, Saudi Arabia,
Syria, Singapore, Taiwan, Turkey, Venezuela & UAE
