international divorce with children

[overseasmom]

I am an American living in France. I am pregnant and would like to return home to the US before having the baby. I was married in France and we have a son (20 months) who was born in the US, has a US passport and birth certificate, was never added to the french "livret de famille". I returned to France when he was 7 months old. I am concerned about custody and child abduction issues that may arise if I leave France. Having this baby here could result in my being 'trapped' here, therefore, I find it urgent to leave. I understand that I can complete the divorce while in the US (North Carolina). Could he prevent me from leaving? If I leave without telling him, would that be kidnapping? Does the fact that my son is a US-born citizen help my situation?

 

[Proserpina]

I am an American living in France. I am pregnant and would like to return home to the US before having the baby. I was married in France and we have a son (20 months) who was born in the US, has a US passport and birth certificate, was never added to the french "livret de famille". I returned to France when he was 7 months old. I am concerned about custody and child abduction issues that may arise if I leave France. Having this baby here could result in my being 'trapped' here, therefore, I find it urgent to leave. I understand that I can complete the divorce while in the US (North Carolina). Could he prevent me from leaving? If I leave without telling him, would that be kidnapping? Does the fact that my son is a US-born citizen help my situation?

Is there a reason why he shouldn't have equal rights to the child?

 

[overseasmom]

I don't intend to deny him a relationship or rights to his child. I have three older children from a previous marriage (US citizens) who would also be forced to remain in France. Being a single mother of 5 children is difficult, doing it in a foreign country without family or support is even harder. As a foreign resident with a limited level of the language, my options for self-sufficiency are restricted.

 

[Proserpina]

I don't intend to deny him a relationship or rights to his child. I have three older children from a previous marriage (US citizens) who would also be forced to remain in France. Being a single mother of 5 children is difficult, doing it in a foreign country without family or support is even harder. As a foreign resident with a limited level of the language, my options for self-sufficiency are restricted.

You really need to speak with a lawyer - France is a signatory of the Hague Convention and if you take the child/ren without the other parent's permission the parent can indeed force the issue and the child/ren will, usually, be returned to France.

Please read the following - you would appear to fit the criteria of scenario 1A:

(from International Child Abduction - Hague Convention of October 25, 1980)

Scenario No. 1A. The American wife resides in France with her French husband and minor child(ren). The wife is not fluent in French and has no or very limited skills to obtain employment in France. The marriage has broken down and the wife wants to return to the United States with the minor child.

Scenario No. 1B. The French wife resides in the United States with her American or English speaking husband and minor child(ren). The wife may not be fluent in English and has no or very limited skills to obtain employment in United States. The marriage has broken down and the wife wants to return to the France with the minor child.

Scenario No. 2A. Same facts as Scenario No. 1A, except that wife has return to the United States with the minor child and less than one year has elapsed from the date of the wrongful removal or retention. The husband has or intends to seek the child's return to France by application of the Hague Convention.

Scenario No. 2B. Same facts as Scenario No. 1B, except that wife has return to the France with the minor child and less than one year has elapsed from the date of the wrongful removal or retention. The husband has or intends to seek the child's return to the United States by application of the Hague Convention.

Scenario No. 3A. Same facts as Scenario No. 2A, except more than one year has elapsed from the date of the wrongful removal or retention.

Scenario No. 3B. Same facts as Scenario No. 2B, except more than one year has elapsed from the date of the wrongful removal or retention.

Comments on Scenarios No. 1A and 1B

The Hague Convention was adopted (ratified) by a number of countries to thwart such preemptive action by a spouse. Under normal circumstances, if the husband brings a timely action to have the children returned, the return of the child will be ordered unless the wife proves that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". (See Article 13b of the Hague Convention.)

If the wife believes that she can make such a showing, it is usually best for her to seek a court order from a court where the child is an "habitually resident", which court order would giving her custody of the child and authorizing her to reside in another country. As an alternative, if the husband is prepared to authorize in writing the removal, that is a possible alternative. However, any such writing should be prepared with the assistance of legal counsel.

You absolutely need to speak with an attorney.

 

[Proserpina]

I don't intend to deny him a relationship or rights to his child. I have three older children from a previous marriage (US citizens) who would also be forced to remain in France. Being a single mother of 5 children is difficult, doing it in a foreign country without family or support is even harder. As a foreign resident with a limited level of the language, my options for self-sufficiency are restricted.

Unfortunately you more or less created the situation yourself and you're now bound by not only France's laws (they have jurisdiction) but also by the Hague Convention. The US will cooperate - as a rule - in returning the children should Dad make a formal complaint unless there is a compelling reason not to do so.

 

[LdiJ]

Unfortunately you more or less created the situation yourself and you're now bound by not only France's laws (they have jurisdiction) but also by the Hague Convention. The US will cooperate - as a rule - in returning the children should Dad make a formal complaint unless there is a compelling reason not to do so.

Dog...there is a factor here that you are unware of...

The Hague Convention states that the country with jurisdiction is the country of the child's birth, unless the child has resided in another country for a minimum of two years, then that becomes the country of the child's "habitual residence" and that country has jurisdiction.

Her 20 month old was born in the US and did not go to France until the child was 7 months old. Therefore France would not yet have jurisdiction of the child, because the child was not born in France and has not resided in France for two years.

 

[overseasmom]

I have had a difficult time determining 'habitual residence' in my case. It seems vague in the actual hague convention, to be evaluated by the courts for each individual case. Could you share with me where you found this info?

 

[Proserpina]

Dog...there is a factor here that you are unware of...

The Hague Convention states that the country with jurisdiction is the country of the child's birth, unless the child has resided in another country for a minimum of two years, then that becomes the country of the child's "habitual residence" and that country has jurisdiction.

Her 20 month old was born in the US and did not go to France until the child was 7 months old. Therefore France would not yet have jurisdiction of the child, because the child was not born in France and has not resided in France for two years.

Ah, LdiJ - now it's time for you to remember that those black and white facts of the law may not always be so black and white (as you're quite fond of telling us!)

The Hague Convention does not actually define "habitual residence" in terms of a specific time limit, OP; though it's certainly not impossible for the US to have retained jurisdiction in this instance (I believe Dad is going to fight tooth and nail to argue this and frankly he has a good chance), you must remember that jurisdiction is not the only thing to be concerned about here.

Since the child is not yet 2 years old himself - the vast majority of his life has been spent in France and I believe this fact may be far more important once this gets to court.

OP, the best advice you can be given is this: please seek an attorney, QUICKLY. Because of the age of the child involved (who cannot have lived in one place for 2 years simply because he has not been alive that long) and the fact that the vast majority of his life has been spent in France I believe you have some massive hurdles to overcome.

Get thee to an attorney - now!