Australian Expatriates : Children and Custody Issues
Divorce is a complicated process and that is particularly the case if it extends to the issue of child custody - even more so where the parents may have different nationalities and the children are living in a foreign country when the separation or divorce occurs.
Children's custody matters 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 advised to seek professional legal advice in this area as early as possible, but the following is offered as a very general introduction to some of the major issues.
| Expatriates should be aware that children’s custody 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 prospect 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. |
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| 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. In practice, many family law jurisdictions prioritise retaining access to the children for both parents and means that one parent will need to remain an expat, away from home and family, until their children reach their age of majority and are free to travel. Sometimes, where children are born in Australia and the family is considering a move overseas on a trial or permanent basis, couples will be advised to put in place a "pre-emigration contract" that details what will happen to their children if they separate. However, the risk of separation is often not foreseen and contracts of this nature may in any event prove unenforceable. If there is any risk of separation however the possibility of "entrapment" overseas makes legal advice prior to any move overseas absolutely recommended. |
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| 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 them 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(ren) in the future, including who they are going to live with and where they are going to live. |
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| 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. |
Relatively few Australian family lawyers have experience with international matters; please contact us using the form at the bottom of this page if you would like to engage a qualified family lawyer to provide advice in your circumstances. You will receive a fee quotation in advance of any advice or services being provided.
