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What happens if my family relocates from another country and then files for divorce?

There are many different factors that can complicate divorce. Having parents who live in, or choose to move to, different countries is one. This type of issue is particularly difficult to navigate when there are children present in the marriage. In some cases, one parent may have custody of the children while the other lives in a different country. Legal disputes can arise when the parents disagree about which is the children’s home country.

Parents in this situation may use an international treaty to try to get their children back to their home country. This treaty, the Hague Convention on Civil Aspects of International Child Abduction, provides a process for parents to have their children returned to their home country. In order to use this treaty, the parent must establish that their country is the child’s home country and must be in a country that has accepted the treaty. There are a number of countries that have joined this treaty, including Austria, Bahamas, Canada, Colombia, Croatia, France, Germany, Hong Kong, Japan, Poland, Spain, United Kingdom, and the United States.

How does this treaty work?

In one example, Cole v. Cole, a mother tried to keep her children in the United States while the father attempted to use the Hague Convention to demand their return to Germany. The father was a citizen of the United Kingdom, the mother of the United States. The couple was married and had two children, both citizens of the United States. The parents and children resided in Germany for four years before taking an indefinite, extended vacation to the United States. Both parents intended the trip as a possible relocation to be near the mother’s family in Indiana. While in the United States, the father began the process of getting a United States Permanent Resident Card and looked to transfer his German pension to the United States. The family also terminated their lease on their apartment in Germany and moved various assets to the United States.

While here, the father struggled to find employment and ultimately decided to return to Germany. Seven months after entering the United States, the father petitioned the court for his children to return with him in Germany. The lower court agreed with the father and the mother appealed their decision.

In these types of situations, the Hague Convention provides that a parent must return a child wrongfully removed from their country of habitual residence. To decide this matter, the appellate court needed to determine the children’s country of habitual residence. Unfortunately the Hague Convention does not provide a clear definition for this term. To help decide this matter, the court stated that a child resides in the location the child lives and that it would consider the term habitual to refer to more than just a transitory stop. The court found the fact both parents considered the trip could at least potentially result in a permanent move weighed heavily in the mother’s favor. The appellate court used this, along with the fact that most of the family’s personal belongings were located in Indiana, the children had already started school and lived within the United States for more than seven months before the father moved forward with his attempt to return them to Germany to support its decision in favor of the mother.

It is also important to note that the court took the facts of the case into consideration when making its determination. Thus the facts of the case will impact the court’s determination. Examples of facts courts have considered in the past when making these determinations include:

  • Location of the children.
  • Whether or not the children have begun schooling in their current location.
  • The children’s involvement in extracurriculars and other social connections in current location.
  • Immigration status of the parents.
  • Child’s age and, in some cases, the child’s wishes.
  • Location of personal belongings.

Even when these factors are established there are defenses that can help to defeat a successful claim using this treaty. Examples can include a grave risk to the child’s physical or psychological wellbeing, the child has objections to the move, removal occurred more than a year ago and the child is settled in the new environment or the parent seeking a return originally consented to the child’s removal.

These cases need to be carefully considered and scrutinized by an experienced family lawyer when they arise.