The European Court of Justice reports that divorce and legal separation between international couples are rising drastically. Additionally, both international and non-international couples are marrying less and less but producing children at similar rates. When becoming a parent, couples do not often think of the legal consequences of where they decide to live with the child. A year abroad for an opportunity to advance your career could leave you stuck in that country for many years.
When a couple of two nationalities decide to separate, the foreign party hopes to return to his or her home country. Living abroad one often struggles due to language barrier, employment, and economic barriers and a lack of family and a support system. When a party returns to their home country, they often times take their children along in the move without authorization from the other parent. Few parents are able to leave a child behind in an international move. One might argue this seems natural. Unfortunately, if the child has been living in that foreign country for a year or longer, the parent’s removal of the child is typically determined to be an international criminal offense.
When the parent returns to the home country with the child, the removal of the child is typically deemed international parental kidnapping. If the left-behind parent initiates a legal proceeding to return the child to the foreign country, the courts will typically order the return of the child to the child’s habitual residence*. Both the home country and the country from which the party recently abandoned are alerted that the party is capable of grave criminal tendencies which the authorities believe significantly damage the minor child.
How can a parent be deemed a criminal for caring for their child? Children as young as three years old have been removed from their mothers after the Courts ruled that the mothers had criminally kidnapped their own children. Some mothers were subject to criminal consequences in the country where her child now lived.
The foreign parent generally has the choice to live in a foreign country with the child, though not always so. Some countries do not allow parents to live in a country if the individual is not financially independent. In this situation, a parent is forced to see his or her child grow from afar.
Alternatively, if the foreign parent is permitted entry to the country in which the child will reside, the parent may still suffer challenges understanding the local language, finding employment, housing, and a support system. Additionally, attorneys seeking to profit from the situation may falsely lead a parent to believe that there is a legitimate threat of criminal proceedings without their assistance.
We have litigated these issues throughout three continents. We have been called as experts to teach this area of law in US federal court and Italian court. We know how to protect your rights to your child. You may not always be blocked in that foreign country. However, you should never return to your home country with your child without the written permission of the child’s other parent. Let our experts help you to understand your rights, and help you make the best choice possible for your family.
*Habitual residence is a legally defined term of art that often times does not mean where the child is currently living. Legal counsel with proven expertise in international family law should always be consulted when trying to understand your child’s Habitual residence and consequences of relocating with the child. This is a very specialized field of law and it not advisable to google your legal advice.