Here are some tips relating to international child custody for parents who are about to move overseas and for parents who are expats in South Africa.
Prior to your relocation overseas
You must realise that if you have minor children in a new country you may find yourself to be confined there. An example: Rebecca the South African and John the American moved to the United States with their baby boy. Life in the USA didn’t work out for Rebecca. She hates it to live there. John refuses to leave and he refuses to consent to Rebecca to take the boy back to South Africa to live. Since both South Africa and the USA are parties to the Hague Convention on the Civil Aspects of International Child Abduction, Rebecca will be in breach if she takes the boy back to the South African without John’s consent. Rebecca is now stuck there.
Try to make a deal with the other parent
When you decided to go overseas as a family agree that it will be for a trial period and that one parent (usually the parent who has the attachment with the child will return if things don’t work out). It is extremely important to have this in writing. Verbal agreements always seem to be forgotten when things blow up. Acquiescence is vitally important and may well be used as a defence in terms of the Hague Convention. Having said this, be mindful of the fact that even a written agreement may not always work and a foreign court dealing with your child custody/care may well decide that a return may not be in the best interests of the child.
Before you switch residences
It is extremely important to consider what the effect of divorce will be if you decide to divorce in a foreign country. Where foreigners live in South Africa, the court will apply the law of the country where the husband was domiciled at the time of the marriage. For example if the husband married in South Africa, but was domiciled in California at the time of the marriage the court will apply the law of the Sate of California should the parties divorce in South Africa.
Say for example Chris and Jill in South Africa signed an antenuptial/prenuptial agreement before they got married and they then move to London, their antenuptial/prenuptial may well be unenforceable in a divorce court in England. Pre-nups are not strictly enforceable or legally binding in the UK (England and Wales). Unlike a commercial contract a party cannot sue on a pre-nup and there is always the possibility that if the marriage breaks down the court will not uphold the terms of the pre-nup. Pre-nups cannot exclude the jurisdiction of the English courts to deal with financial issues on divorce. English courts have very wide discretionary powers to distribute family assets as they see fit, so as to bring about fairness between the couple. The UK courts regard the couple’s respective roles as economic provider and child carer/home-maker as of equal value to the welfare of the family. To make matters much worse for Chris (who had numerous assets before the marriage and thought he was fully protected by the pre-nup), there is no distinction in the UK between marital property and separate property acquired before the marriage.
Before leaving your place of habitual residence
Don’t sell your house straightway. If you maintain an address in South Africa or elsewhere it will be easier to claim that you kept your home as your permanent residence. This will show that it continues to be your domicile even if you move temporarily to another.
If you’re feeling trapped overseas
Don’t just jump on the first aeroplane with the children. Calmly plan what you are going to do first. If you just take the children and leave you may well be guilty of international child abduction or kidnapping. You could even be arrested before you leave. If you make it to your country of origin, you may well be forced by a court order to return and ordered to pay your spouse’s legal fees as well as your own. When you return your case will be heard in the foreign court. Therefore it is extremely important that you consult with a well-informed international family law lawyer or attorney as soon as possible.
If you’re feeling trapped overseas and have children with you, don’t just jump on the first aeroplane. Calmly plan what you are going to do first. If you just take the children and leave you may well be guilty of international child abduction or kidnapping. You could even be arrested before you leave. If you make it to your country of origin, you may well be forced by a court order to return and ordered to pay your spouse’s legal fees as well as your own. When you return your case will be heard in the foreign court. Therefore it is extremely important that you consult with a well-informed international family law lawyer or attorney as soon as possible.On the other hand, if it’s your spouse who’s feeling unhappy and who may bolt back home you should be kind and understanding. You may want to hide the passports, consult her friends or suggest counselling. Have a plan to call the police. If you are in a foreign country and pregnant, and not confident that you will want to live overseas country, consider whether it may not be better to have the baby in your country of origin by obtaining your husband’s consent. If your child is born in say Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will be Sweden or Saudi.
Prior to your relocation overseas
You must realise that if you have minor children in a new country you may find yourself to be confined there. An example: Rebecca the South African and John the American moved to the United States with their baby boy. Life in the USA didn’t work out for Rebecca. She hates it to live there. John refuses to leave and he refuses to consent to Rebecca to take the boy back to South Africa to live. Since both South Africa and the USA are parties to the Hague Convention on the Civil Aspects of International Child Abduction, Rebecca will be in breach if she takes the boy back to the South African without John’s consent. Rebecca is now stuck there.
Try to make a deal with the other parent
When you decided to go overseas as a family agree that it will be for a trial period and that one parent (usually the parent who has the attachment with the child will return if things don’t work out). It is extremely important to have this in writing. Verbal agreements always seem to be forgotten when things blow up. Acquiescence is vitally important and may well be used as a defence in terms of the Hague Convention. Having said this, be mindful of the fact that even a written agreement may not always work and a foreign court dealing with your child custody/care may well decide that a return may not be in the best interests of the child.
Before you switch residences
It is extremely important to consider what the effect of divorce will be if you decide to divorce in a foreign country. Where foreigners live in South Africa, the court will apply the law of the country where the husband was domiciled at the time of the marriage. For example if the husband married in South Africa, but was domiciled in California at the time of the marriage the court will apply the law of the Sate of California should the parties divorce in South Africa.
Say for example Chris and Jill in South Africa signed an antenuptial/prenuptial agreement before they got married and they then move to London, their antenuptial/prenuptial may well be unenforceable in a divorce court in England. Pre-nups are not strictly enforceable or legally binding in the UK (England and Wales). Unlike a commercial contract a party cannot sue on a pre-nup and there is always the possibility that if the marriage breaks down the court will not uphold the terms of the pre-nup. Pre-nups cannot exclude the jurisdiction of the English courts to deal with financial issues on divorce. English courts have very wide discretionary powers to distribute family assets as they see fit, so as to bring about fairness between the couple. The UK courts regard the couple’s respective roles as economic provider and child carer/home-maker as of equal value to the welfare of the family. To make matters much worse for Chris (who had numerous assets before the marriage and thought he was fully protected by the pre-nup), there is no distinction in the UK between marital property and separate property acquired before the marriage.
Before leaving your place of habitual residence
Don’t sell your house straightway. If you maintain an address in South Africa or elsewhere it will be easier to claim that you kept your home as your permanent residence. This will show that it continues to be your domicile even if you move temporarily to another.
If you’re feeling trapped overseas
Don’t just jump on the first aeroplane with the children. Calmly plan what you are going to do first. If you just take the children and leave you may well be guilty of international child abduction or kidnapping. You could even be arrested before you leave. If you make it to your country of origin, you may well be forced by a court order to return and ordered to pay your spouse’s legal fees as well as your own. When you return your case will be heard in the foreign court. Therefore it is extremely important that you consult with a well-informed international family law lawyer or attorney as soon as possible.
If you’re feeling trapped overseas and have children with you, don’t just jump on the first aeroplane. Calmly plan what you are going to do first. If you just take the children and leave you may well be guilty of international child abduction or kidnapping. You could even be arrested before you leave. If you make it to your country of origin, you may well be forced by a court order to return and ordered to pay your spouse’s legal fees as well as your own. When you return your case will be heard in the foreign court. Therefore it is extremely important that you consult with a well-informed international family law lawyer or attorney as soon as possible.On the other hand, if it’s your spouse who’s feeling unhappy and who may bolt back home you should be kind and understanding. You may want to hide the passports, consult her friends or suggest counselling. Have a plan to call the police. If you are in a foreign country and pregnant, and not confident that you will want to live overseas country, consider whether it may not be better to have the baby in your country of origin by obtaining your husband’s consent. If your child is born in say Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will be Sweden or Saudi.
