Australian Expatriates : Children and Custody Issues
Divorce is a complicated process and that is particularly the case when considering the issues of custody, where the parents may have different nationalities and the children are living in a foreign country when the separation or divorce occurs. Children’s issues can give rise to very significant and protracted legal issues for expatriates and it is not possible to cover the very wide gamut of personal situations. You are obviously advised to seek professional legal advice in this area as early as possible, but the following is offered as a very general overview of the situation:
- Expatriates should be aware that children’s issues will normally be covered in the jurisdiction in which the children are residing and you will be subject to the laws of the host country. Thus, if your children are with you in an overseas country and you do not wish them to leave that country and you are in possession of their passports, your partner will have little chance of legitimately removing the children from that jurisdiction. Should one partner wish to leave the country with the children (and doesn’t have access to passports) then they will typically need the consent of the local court to remove the children from the jurisdiction in which you are then residing. This is unless they are able to obtain replacement passports, and some countries will provide new passports to their nationals without reference to the other parent, if he or she are not nationals of that country. In Australia, and some overseas jurisdictions, you can in certain circumstances lodge a notice with the departure authorities whereby parties trying to remove children from the jurisdiction without the consent of the other party can be stopped at the departure point and prevented from leaving with the children.
- Very importantly, if your children are born overseas, you cannot just remove them to Australia and say, “we live in Australia now”. The other parent will often be able to enforce his or her rights under the Hague Convention to have the children returned to the country where they have habitually lived prior to them being taken away. That means that if you want to stay with your children you may need to remain in that country until your children reach their age of majority and are free to travel with you to Australia.
- What happens under the Hague Convention in respect of these matters is that a formal request is made from the Central Authority of the country from where the child is taken (where the child normally lives) to the Central Authority in the country to which the child has been taken for that child to be returned to the country from which it was taken. The country to which the request is made is supposed to effectively just return the child to where the child came from, although there are certain (limited) grounds for resisting a Hague Convention application. In most cases, however, the child is returned to the country where the child has normally lived, prior to it being removed from the country. The Courts in the country to which the child is returned are then given the task of deciding what is going to happen with the child in the future i.e. who he or she is going to live with and where he or she is going to live.
- Not every country in the world is a signatory to the Hague Convention. Most Muslim countries are not, but countries such as the UK, Australia, New Zealand, Hong Kong and most European countries, as well as the United States and Canada are signatories. Because the countries each rely on each other complying with their obligations under the Convention, it is very difficult to resist an application for a child to be returned to the country from where the child was removed. The following is a list of signatory countries to the Hague Convention.