Many families move abroad thinking that if it doesn’t work out they can simply move back home.
However, if one parent wants the child to stay in the foreign country the other parent must get permission from the local court to allow the child to return to their original home country. This process can take many years; visa restrictions, unemployment, poverty, language barriers and loneliness during this time can take often make life impossible for the now ‘stuck’ parent and child. The stuck parent often has no choice but to return to their home country without their child.
Often, families receive advice on moving abroad from the government, migration agents and TV programmes. But there is one thing that NOBODY tells you about moving abroad with your children (and it’s probably the most important thing!): if you end up separating from your partner, or if one of you wants to stay in the foreign country while the other wants to go home, you might not be allowed to return home WITH your children.
Yes, it sounds completely crazy but this is actually happening to thousands of expat parents all around the world. International law states that when you arrive in a new country with the intention of staying, the ‘habitual residence’ of your child shifts to that new country.
So unless the other parent gives you permission to take your children back home, you will need to apply to the LOCAL court to override this. It doesn’t matter if all the family are of the same nationality, or how long you’ve been abroad; it doesn’t matter if you’re fleeing domestic violence and poverty; it doesn’t even matter if the other parent is in prison and you are the sole carer! By law, you must stay put and wait for the local court to decide if you can go back home with your children.
Usually a relocation application takes 2-5 years, so if your children were not very accustomed to living in the foreign country at the time you applied to the court, the problem is that they might well be by the time your case comes to court.
Being a single parent is hard enough in your own country with family and friends to support you, but living thousands of miles from that support – possibly without income and health insurance – can be devastating. Right now there are parents squatting in empty houses, living in caravans and sleeping on neighbours’ floors because they are too poor to stay in that foreign country but can’t bear to leave their children. It is truly heart-breaking.
Many parents do just take their children back home. They think that as the Primary or sole carer (they may even have been designated such by a court) that they can make the decision to leave the ‘new’ foreign country and go back home. What can happen then is sometimes a nasty shock: the other parent can invoke The Hague Convention on the Civil Aspects of International Parental Child Abduction 1980’. Basically, this means you stand accused of child abduction. You would find yourself in court with very limited defences to not return your children to the country of ‘habitual residence’. Some parents have even been imprisoned for child abduction for this ‘offence’.
Before making the move abroad, discuss all the possible ‘what if’ scenarios (here are a few to get you started)
- What if one of us doesn’t like living in the new country (but the other does!)?
- What if we split up?
- What if one of us or one of our children gets ill and wants to go home?
- What if one of us has an affair and the other wants to go home
The key question to ask is: will we both return home OR will one of us be able to return home with the children? In addition how long will any agreement be valid for? (We think 2 years is a reasonable amount of time to see if you like the new country before committing.)
It is VITAL to make these decisions BEFORE moving abroad and then to get an experienced International Family Lawyer (who knows about The Hague Convention) to formally record the decisions.
We have produced a draft contract for you which works a bit like a ‘prenup’ for moving abroad. This means that, although it may not be 100% watertight in court, it is a LOT better than nothing and if you and your partner cannot agree on the ‘What Ifs’ at least you will be going into the move with open eyes; perhaps you might reconsider moving altogether. As one of our ‘Expat Stuck Parents’ said recently: “There’s a lot to be said for staying put. You’ve got your family, your friends, your job and you know where you are”.