Custody with a Non-US Parent

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Archived Q&A and Reviews

Questions

Worried that my husband may take our child to his home country

June 2009

I am finally planning on leaving my husband after just over 10 years of emotional, psychological, and occasional physical abuse (which I regret was not reported - and which never escalated beyond pushing and shoving - though I was pushed even with a baby in my arms, and even as I tried to nurse a baby to sleep). I am thrilled to be going! However, because of possible custody issues, I want to be sure that I do everything carefully. My husband has hidden several thousand dollars (I have records of him taking several thousand from our joint account). He can hire a lawyer. At present I am without any income, but I will work hard to find help and information. I've already found leads right here on BPN. He is here on a Green Card, and may wish to return to his native country. I do not want him to take my child! He is capable of blowing up, and I do fear that he might just take her. Her residence has always been the U.S., and I have always been her primary (nearly exclusive) caregiver. To start out on my own, I want to stay with family about an hour out of the Bay Area, but I don't dare take the child and leave because I don't want him to accuse me of taking her from him, or to later take her out of California entirely. I want to do everything as openly and honestly as possible, but he is telling me that I ''may not'' leave with my daughter. How can I get out in a way that will look acceptable in court once we file for divorce? I do not want for him to blow up and try to ''take'' her before I do, and I also do not want to do anything that would hurt a future custody case. Ready to get ... outta Dodge

As I understand it, both parents must be present in order to apply for or to renew a child's passport (for exactly the concern that you raise of one parent taking a child out of the U.S.). Your husband may be able to get the child a passport from his country of citizenship and have the child travel on that passport, however. You'll have to check the rules.

Can I get sole custody if my husband returns to his home country?

April 2009

I could really use some help here, folks. I am married to a man from another country. We have a son, a toddler. The ONLY reason we are still married is because I fear that if we get divorced I'll either never see my son again (if my husband takes him away to his home country), or we'll have to work out some arrangement where it's one year in the States, one year in dad's country for the next ten years or perhaps longer. I also am leery to discuss this with my husband, since I don't want to give him any ideas if he's not had them already... This is not an abusive relationship, by the way: he and I both love our son, and our son loves us; I just can't stand my husband, and I suspect that my husband can't stand me. My ideal scenario? My husband leaves, and I get sole custody. How likely is that to happen? I really doubt it. Can anyone offer some help or advice or suggestions? Thanks very much. T

NOTE FROM MODERATOR: Do not rely on BPN for legal advice. The responses posted are advice based on personal experience, and your own situation may differ greatly!

You need to consult a lawyer, quietly, before having a talk with your husband about divorce. Your husband does indeed have rights in terms of custody, so getting sole custody of your child without his full consent is indeed unlikely, I would guess. And in fact, your son needs his Dad. Shutting that relationship out of your son's life, while convenient for you in some ways, could be very painful for your son. Your husband has a culture and a family that belong to your son as well. That is part of your son's inheritance. And he belongs to them as well. I am divorced and I know how hard it is to accept the idea that I couldn't just raise my son on my own more easily and more capably than trying to parent with his Dad. But that idea is false. The best possible thing for all of you is if you can continue to parent together, share the responsibilities of parenting so that each of you have space and time to develop your lives and careers. Single parenting is HARD. Ask any of the single parents on this list. Co-parenting with an ex-spouse is also hard, but doing it well is worth it. So I would suggest protecting your interests by making sure that your husband could not take your son away completely or for longer periods than seem advisable for your son's welfare (i.e., diving the school year). But be prepared for the possibility of joint custody and for having your son visit his father's home country for periods of time. If it works well, it can work to everyone's advantage. divorced mom with 50% custody

Go ahead and get divorced. Your child cannot even be issued a passport without both bio-parents present. Your divorce decree should specify terms under which the child should be taken out of the Bay Area- and violating those terms, even in the USA, can be grounds for arrest because of the court order which your Final Settlement Agreement is. Even if the divorce documents do not say this, you and your ex will not be able to get your child on any international flight without a notarized letter from you stating that the trip is acceptable. Taking your kid out of the country without authorization is considered kidnapping legally and most countries will extradite your kid back to the home country. Where is your STBX (soon to be ex) from anyway ? Unless it is someplace that is basically lawless you are quite safe. Obviously, I have been there. Been There, Done That, Better off.

This is a difficult situation, before you do anything consider the options, as I am from a different country and my ex-husband put a restraining order not to live from the state and from the country with the kids. So, I was stuck here with two children with no family around and had to reconstruct my life here in the US, not that I am saying it was a bad thing but it was not the best for the children, as I struggled to make money to support them and I had no help whatsoever after the divorce, my ex husband paid child support but I had to go to court to garnish his paycheck as he was not paying, after two years of the divorce he started dating and canceling his visitation times constantly, and ten years after the divorce, he rarely sees his teenage children who are in College now, his children speak with him or visit him two or three times a year, and he did not give a dime for College, it was and it is a nighmare for me. Not that this would happen to you but I was limited to stay here, while in my country I had a home to live in, support from my family and my children would have been in an international american school which would give them a better education and social interaction, much better than in the US. For me, it was a tradegy that I remained here, I do not know for my children,I stayed here with the hope that my children will never turned to say that I was the cause of not seeing their father if we were to move to my country. So,it depends from which country is your husband, what kind of arrangements you can have if he is to move to his country, and what are the advantages and disadvantages for your child, not for you or him but for your child. This is what you have to consider: what is the best for your child.If you are both involved into raising your child equally then it is different but if you are more involved with raising your child then very rarely the courts would give a child to be raised in another country if he/she was born here in the US. Anon

I feel compelled to reply to your posting because I have been in the same situation except that I was the foreigner. I was married to an abusive (American) husband, so I had no other choice than divorce him (a few years ago). We have a child (5 years old at the time). I was scared at first to divorce because of the international dimension of it but I wanted to go back to my country. The evaluator who was hired recommended to the judge a custody arrangement alternating 3 years in each country. I couldn't agree with such arrangement (I specially thought it would be detrimental for my child's education, not to mention the stress associated with international transitions) and after much grieving, I decided to stay in this country so I could be part of my child's life. We are now like any other divorce and share the custody of our child which works fine, except that I still miss my country.

I wish you good luck, it is not an easy situation. The best scenario for you would be that the dad would go back to his country and agree to leave the custody to you, but is he ready for that? anon

Juggling custody between two countries

Oct 2007

I am European. My ex-husband is American. We are now divorced. We have a son. At the time of the divorce, a custody evaluator has been hired to come up with a custody arrangement that would be ''in the best interest of the child'', as I wanted to go back to my country and my job there. The evaluator submitted a custody plan to the judge: my son would stay with me, in my country, for 3 years, then come back to the USA and stay with his dad for 3 years, then with me for 3 years, and so on until he reached the age of 14 when he could decide for himself. I didn't like the plan, but had no other choice than to agree with it to avoid another costly trial. The father also agreed (for the same reasons), but convinced me to stay in the USA, for the sake of our son (''he will have to leave his school, his friends'', etc.), which I did. In fact, I was afraid of subsequent transitions for him and thought it wasn't a good idea. I have been wondering, since then, if other couples have faced the same situation and if it has affected the children (moving back and forth between two different countries, different cultures, different languages, etc.). Thank you for your feedback of this subject. anon

We have been juggling custody between two countries with my stepson for a couple of years now. In our case there was no custody agreement, but the agreement that my husband reached with his ex-wife is pretty similar to what you described. My stepson had been living with his mom, and saw his dad (who was living in a third country) only occasionally. When my husband moved with me to the US, she agreed that their son could live with us until he got US citizenship (about 3-4 years), and then he will go back to live with her for another 3-4 years, at which point he will be close to 18. He spends summers with his mom now too and we will get him summers when he is living with her. It has definitely been tough, but we all feel it's the best solution in terms of him being able to spend as much time as possible with both parents, long-term. (In our case, it's not feasible for her to live in the US or for us to live in her home country). He is also getting the experience of growing up in two cultures, which will be invaluable later on.

Having a good relationship with his dad will be important (I think it's actually easier to do when you're in different countries!). Explain to him that you will be happier, have a better job, and more support in your home country, which will all benefit your son as well. Tell him you've tried to make it work here and still believe you will be better off there. Try to be reach an agreement so that they can still see each other as much as possible - summers, winter break, etc. Get a web camera so they can see each other when they talk by phone. The initial transition may be tough for your son, but kids adapt very quickly and he will look forward to coming back to see his old friends when he is with dad.

Having parents in different countries creates different issues, but on balance I'm not sure our situation is any more difficult than any other shared custody arrangement. J

Husband wants 50% custody of 3-year-old in Europe

May 2006

My husband and I are in the process of separating and will be seeking a divorce. I am American. He is European. We have one daughter, who is 3-years-old. My husband wants to return to Europe ASAP and wants 50% custody. I would like my daugher to remain in this country except for 2-3 months in the summer when I would accompany her to Europe (staying at some distance so that my husband can have maxiumum time with her alone). What's best for our daughter? We can't afford lawyers; I've just purchased all the NOLO Press books on this subject and will consult them. Any advice or experience from BPW members would be appreciated. Needing advice

Though a court would probably grant primary custody to you, it makes me feel very happy that you seem to comprehend that your child should have a father in her life. For now, I'm sorry but I don't have a lot of advice. However, once it's time for school, I think you will have to decide where she attends school, and where she spends all of her holidays/summers. Anonymous

Right now your daughter isn't going to school so it's theoretically possible to have 50/50 custody with that distance (though I don't think it would work well). Once in school, there's no way 50/50 is in the best interest of your child. I split with my ex when my child was 5. Though we have both had times when we would have liked to move, we are committed to staying in the Bay Area until our child is in college so that we can maintain our 50/50 custody arrangement. If your ex insists upon going to Europe, I think he needs to be more realistic about how much custody he can really have. Anon

please please please get a lawyer. There should be low cost options and I am hoping that someone else will post some of these. It is already difficult enough for children to go through a divorce, but if you throw distance into the mix you will set yourself up for a disaster and long life difficulties. 50% custody when both parents are near each other comes with its difficulties but it can work for many parents. Not sure how you would see this work when one parent is in Europe. My sons father lives 200 miles away and I have sole physical custody. My son spends every other weekend away and most vacations, and half of the summer vacation. That is as much as I was willing to let my son go away without completely disrupting his life. If you are not able to figure things out on your own, and I would absolutely predict it won't coming from two different cultures, things could get very nasty. I am European and my son's father is American. I ended up having to sign in the custody agreement that I would never take my son to live in Europe, so ultimately if I want to stay with my son, I cannot leave either but that is a small price to pay. You need someone who can help you figure out what is best for you and your child. I had no money but had to put all my lawyers fees on my credit card. It took me many years to pay it off but in the end it was worth it. This is too big to handle on your own with ''do it yourself book'' you need to protect your daughter and yourself. have been there

I can't comment on your soon-to-be-ex husband going to live in Europe, but I can say that your daughter at some point will have to go to school and she can't do half a year here and half a year there, it isn't practical. I think your solution is good: summers with him in Europe, the rest of the time with you here (also other holiday times that either he or you can get to the other continent). Going such a long time without seeing her dad might be hard on a little girl. Another thought would be if he waited to go to Europe full-time until she started school, that way she could get used to the idea of you guys not being together, and see what it's like going back and forth from one house to another. I separated from my ex when my daughter was almost 5. She went back and forth for a while, until we worked out a different solution. We were only across town from eachother. You don't say if he is willing to do your plan or not. If he is, then I suggest going to a mediator to hammer out a plan in detail. This can be what you use for your divorce. That's what I did. The lawyer that my ex hired to draw up the papers wanted to change it, but we insisted that this was what we wanted-unchanged. If he is not willing to go with your plan, you still might go to mediation to work out a compromise. It will work out better in the long run than going to lawyers who can be so aggressive (and expensive). If the woman we went to is still around you could give her a try, Nancy Foster. She was in Corte Madera 10 years ago. Good Luck. And get those frequent flyer miles going! anon

Although I have no similar experience to draw from, my gut tells me that shuttling a 3 year old back and forth across continents would be extremely stressful -- esp. for her, but also for you. Your plan of 2 - 3 months in the summer sounds much more feasible and would be, in my opinion, much easier for your child. That your child's dad would want to flee to Europe as soon as possible -- away from his child -- is, in my estimation, a poor showing of his devotion to his daughter (I grant you that I am being highly judgmental here, since I don't know the specifics of your/his situation). Although it is understandable that he would want to go ''home'', I just don't get his wanting 50% custody at the cost of his child being bounced around the globe like a ping-pong ball. Maybe he is a great dad, but the situation, as he appears to want it to pan out seems to take little consideration into how the poor child is going to feel about all of this. Throw the stress of international travel in the mix, and boy, does that sound unfair! So my advice is to stick to the 2 - 3 months in the summer idea, so your child won't get quite so rattled and bewildered by such enormous change in her life. Anon

You really need to get a lawyer, especially if this is a case where your husband is a German national. --make it legal

I received some great advise/words of caution in this column about going to Europe with my child for the purpose of visiting her relatives there (I'm American, the father is European, we are divorcing and our child is 3-years-old). Many of you warned that I should have a custody agreement in place before doing so. I spoke with a divorce attorney about this and was told that - in the end - Calfornia custody agreements are not respected by European courts; the attorney said that even with one, I would basically have to trust the good intentions of my husband. Does this agree with what others have been told? Grateful again to BPW

I think the main thing to keep in mind is that if your child is away for your for a longer period of time, your spouse is creating a new center of living for the child. So, no, a Californian custody agreement might not work in Europe, because the argument is that your child now lives in Europe. What is more important is that you are there, too, and that you have a written agreement from your spouse that he is on VACATION and plans to RETURN at a SPECIFIED date. This is what I have been told. I am not a lawyer, and I suggest you clarify this with one prior to any actual traveling Good luck

Although I am not familiar with international custody law, I do know that there are US laws that would consider it kidnapping if your husband does not have authority to keep your daughter (either with a court order or your agreement), and I do not believe you received accurate advice. I suggest you contact a few other attorneys to get more information. I would suggest Margret Gannon, Cynthia Podren, and Dennis Rothaarr. I would imagine it is hard to prosecute him if he is out of the country, so it may be true that the other country won't try too hard to return your child. However, I absolutely believe you will have more protection with a court order specifying the custody and visitation so that it is clear if and when he is in violation of that order. Better safe than sorry.

Hi. I am going through something very similar: I moved here from Scandinavia with my daughter (who is now three) and must bring her to Europe this summer. But am worried about legal ramifications if I do (the father could file papers to keep her) and if I don't (the father could contest custody due to ''broken visitation agreement''). Would be great to have somebody who is experiencing the same thing to connect with.

It has been expensive (lawyers on both continents), stressful, disillusioning (with respect to international law- lies, mistakes, bad judges in Alameda county...). Feel free to contact me if you like- to commiserate, laugh, yell, and just have somebody who understands the incredible frustration of dealing with international family law firsthand. I do not know fully what your situation is, but even though I know I am so lucky to have had the choice to move back to the States with my small daughter (who was one and a half then), it has not been an easy adjustment. tamar

Husband wants to take children back to Europe

Dec 2001

Has anyone recently dealt with a divorce where the divorce was also recognized in another country and where there are custody issues? I am looking mainly for advice right now. My husband is very unhappy and has been threatening to take off to Europe with our two young children. I want to know my rights in two situations: 1/ as a parent, if he decides against my wishes to take the children to Europe temporarily; and, 2/ what would happen if we were to seek divorce and he wanted to move back to Europe (he is Spanish, I am American). I was just reviewing the recommendations for family lawyers and divorce attorneys and didn't see anything that suggested any of these folks have experience dealing with a marriage that is recognized in another country.

It doesn't matter what other countries the marriage is recognized in (it should be recognized everywhere!) -- what matters is that it is recognized here, and you and your family have established residences here.

That makes it irresponsible and illegal for your husband to return to Europe with the children unless the terms of the divorce allow for that (this is why they now have legislation requiring both parents to sign to acquire a passport for their child). Otherwise you have a right to demand that the children remain in the country -- and even in the state. This should all be a part of your divorce arrangements.

That being said, my view is that in setting the legal divorce terms you need to protect your interests (the children being able to be with their mom) but also be fair to the needs of your husband. If he will have visa issues and difficulty maintaining work here (or will simply be unhappy here), then perhaps you should consider an arrangement whereby the kids get to spend Summers in Spain with their father (at his expense, perhaps).

If you are fair with him then he is more likely to be reasonable with you. If you think it is likely that he will agree to all this but then refuse to return the kids to you after their first Summer visit, I don't know what to tell you, because that could be a potentially costly and difficult legal process (and it may take a long time) to get them back. If you are worried about this I think the best place to start may be with an immigration attorney (there are many good ones in San Francisco). Get up to speed on your husband's exact status here and what that would mean to him, and to your family, in the event of a divorce.

Christopher

Run, don't walk, to see Miriam Steinbok in Oakland. 763-5611. I had a chance to watch her work in the courtroom during my divorce, (where I acted as my own attorney) and she clearly knows this issue, and if I understood the conversation she was having with another family law specialist, she has been actively in the legislature in seeking clarity on this matter for all of the state.

Had my divorce been more acrimonious, I would have used her regardless of the fact I had no such issues; she's that good. Also expensive, but sometimes the very best is barely good enough.