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Moving Your Children Overseas After A Divorce
Ewan Cambell MacDougall
If you have started a family (or moved your family) overseas but your marriage did not turn out to be the happily ever after you hoped for, you might be feeling it is time to go back home, or maybe even try a fresh start in a completely new country. If this is your situation, one of the biggest dilemmas you might be facing is what happens to your children.
The law of course varies from country to country, but the law in the United Kingdom which is reflected by many countries around the world, states that you cannot take a child out of their country of birth without the permission of both parents, unless a court has specifically ruled otherwise. This does not only apply to moving overseas, but it can also apply to foreign holidays as well. Taking children overseas without the consent of their other parent can be considered child abduction – a serious offence – even if you have primary custody of your children.
Kidnapping
With the globalising world creating more and more international families, an increasing number of people are filing these kinds of kidnapping complaints. In fact, a survey conducted by the Permanent Bureau of The Hague and Cardiff University in 2008 showed that in just five years, the number of cases of these kinds of international child abductions had risen by 45per cent. The overwhelming majority of which were mothers leaving the country and taking their children with them.
In my experience working with the UK law firm Panonne, the vast majority of these cases come down to parents not understanding the law and what having custody of their children actually means.
What Should You Do?
If you want to leave the country with your children, do not make any assumptions. Be sure to familiarize yourself with the exact law in your country.
In most countries, you must either get the permission of the children's other parent, or go to court. Typically, the first option is the easiest, so we always recommend looking to gain your former partner's permission before considering court.
In an ideal world, your children's other parent's main concern will be the welfare of the children, so it will be up to you to convince them that moving overseas would be a wonderful opportunity for your children to build a better life. To do this, it is wise to be well prepared before you go into any conversation with your partner, with research that might convince them it is in their children's interest to go.
Be sure you can tell your former partner exactly where your children will be living. If you have photographs, bring them along so you can demonstrate that it will be a good standard of accommodation in a nice area. School is also likely to be an important issue to any parent, so be prepared to explain what the standard of schooling would be like in your new home, and maybe bring along school prospectuses, details about the curriculum your children will be studying, and anything else that could be useful.
Another concern will likely be if you have enough money to take care of your children, so be prepared to share with your partner what your job prospects will be like in the different country, and share any job possibilities that you might have lined up already. It is also a good idea to bring along any details of benefits that you or your children might be entitled to in another country, in case things do not work out as planned.
One major fear that the other parent might have with your idea of moving the children overseas is that they might lose contact with their children. If this is the case, try to create a plan or schedule that gives your children as much contact as possible with their other parent. Bring along flight timetables and prices that show how easily the trip can be made and discuss how often you intend to bring your children back on holidays.
Hopefully doing all this will be enough to help persuade your former partner to let you take your children overseas, but if they are unwilling to give you permission or you are unable to contact the children's parent, you might then need to seek permission from a court of law.
Going to Court
A family court can overturn the other parent's objections, but it is important to note that it will usually rule in the child's best interest, not yours. The more contact your child has with their other parent, the harder it will be to have them overturn the other parent's views. The factors that a court will tend to look into include:
• What is your motivation? Are you seeking a better life for your children, or actively looking to reduce the influence your former partner has on your children.
• Are you prepared? Moving overseas with children requires a lot of research and preparation. Can you demonstrate that you have done this and that you know what you are getting your children into?
• What will be the effect on your children's relationship with their other parent? The court will want to know if your children will suffer from not having easy access to both parents.
• What new relationships will be established? Will your children be able to make up for the loss of their other parent with new relationships that they will establish (such as with grandparents)? If you believe so, try to prove it.
• What happens if you are not allowed to leave the country? Are you leaving to get away from something, or do you have better job prospects abroad? If things will be worse for your children if you cannot leave, this could also affect the court's decision.
These kinds of court cases can be extremely difficult and emotional, but it is essential that (a) the needs of your children be the priority when making any decision to take them out of the country that they were born in (or grew up in), and (b) you legally have permission to take them out of the country – because an already difficult change has the potential to be made a lot worse if you find yourself facing charges of child abduction because you did not have the consent of the other parent.
Ewan Cambell MacDougall writes for Pannone – a vibrant law firm based in the United Kingdom. Consistently highly ranked in key legal directories, many of their lawyers are leading lights in their chosen fields and have the skills, experience and judgment to deliver the results you need. With over 100 partners, 300 lawyers and a total team of over 600 people, they can deal with most of your legal needs – from individual, personal cases to complex corporate projects. If moving your children overseas after a divorce is an issue that you are dealing with, we invite you to look for further advice in Panonne's guide for Divorce Solicitors.
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