There are lots of different types of expats. The “romantic expat” or someone who moves for love. The “holdover expat” who goes to another country for work or school, originally planning to be there a short time. Finally, there are folks like me, a “trailing spouse”. This means I have accompanied my partner to a foreign country, usually and in my case, due to work. For the trailing spouse it means both opportunity and sacrifice.
Moving is tough and gets harder the farther we go from everything we know. Add moving a whole family and things become even more complicated. It’s not just ourselves we need to worry about, it’s how the spouse and kid/s are adjusting as well.
Not every partner is going to adjust well to a different culture, physical environment, and language. Especially when there is a significant change in station. There will be a major change in the power dynamics of the relationship. All of this puts stress on the marriage. Particularly if the other partner is thriving. They can both become resentful, and ultimately bitter, towards one another. In my time I have seen more than one marriage collapse under the strain. Something it never occurred to me to be concerned about is what would happen to Lil Bit if our marriage exploded.
While SM and I, like any other couple, have our ups and downs I do not anticipate my marriage falling apart. The thing is, who does? Oh, sure, in retrospect it may be obvious. Or perhaps to people able to look at the situation with a degree of separation. But often those of us in the relationship are completely blindsided in the moment. If the worst does happen and I want to go home, but SM wants to stay I might not be allowed to leave with Lil Bit.
That’s right. If my husband and I split up and he wants to stay in Denmark while I want to return to the love and support of my family in the US the only way I may be able to do that is to leave my daughter behind.
It’s actually worse than that.
The crux of it all is the idea of “habitual residence”. Technically, international law states that the habitual residence of our child shifts to the new country when we arrive with the intent of staying.
Habitual residence is loosely defined as the family and social environment in which the child’s life has developed.
The definition of habitual residence is so loose that it’s been pretty much up to local judges to define it. In some cases it’s been applied as soon as the plane lands. Even if the couple have agreed that the move will be short-term or is on a trial basis.
Since we’ve only been here a year, I have a strong argument that Denmark is not Lil Bit’s habitual residence. However, the longer we stay the weaker that arguement gets. Being in the Danish school system her Danish is already as strong, if not stronger, than her English. And it is within this system that she has found friends.
The removal of a child from his or her ‘habitual environment’ without the consent all who have the rights of custody of the child is kidnapping. Taking my child to the US with the intent to obtain legal right of custody is kidnapping. That’s right. I could go to jail, to prison, for taking my child to our home country.
To make the situation more grim, though SM’s visa is open, mine is not. My being in this country is completely contingent on my marital status. If my marriage breaks down I could be forced to leave the country – without my daughter.
I could, and of course would, fight for custody. But it would be both expensive and time consuming. I would have to apply to the courts local to my daughter’s residence which means the Danish court system. The process takes years, averaging two to five, and costs tens of thousands of dollars. This means even if I could argue Lil Bit’s lack of connection to Denmark in the beginning of the process I’d be hard pressed to do so by the end when she’s spent majority of her life here.
Whether the couple be made of romantic, holdover, a trailing spouse or some other combination of native, foreigner, expat or immigrant the staying partner can argue in court that the child is fully integrated. The child has friends and is happy. The staying partner can claim the leaving partner is being unreasonable. They rightfully argue that they deserves to be in their child’s life as much as the leaving partner does. Taking the child from the world he or she is most comfortable in is the height of selfishness. The only problem is the leaving partner. If the leaving partner wants to go, fine. But the child stays.
In these cases the partner who wants to stay has the more compelling legal argument. Especially when the focus is on the best interest of the child to the exclusion of what may be best for the family unit as a whole. There is a failure to understand that the partner who wants to leave is forced to choose between abandoning the child and abandoning a career, family, friends, and culture in their home country. Even when the leaving partner is the one is the one being abandoned.
What would most likely happen if SM and I split is court enforced shared custody. For me to participate in that shared custody I would have to stay here in Denmark. This is a problem because of my lack of visa status. My skill sets (being an ESL teacher or a paralegal) are not particularly transferrable to Denmark so finding a company to sponsor me would be difficult. Culturally there is little respect for, or even understanding of, stay-at-home moms. On top of this Denmark is a very difficult country to move into. I’ve met and heard stories of people married to Danes, who have Danish children, who have been deported for not meeting government standards of integration.
Wait. There’s more and it’s not getting any better.
Article 13(b) of the Hague Convention spells out exceptions to what is the otherwise mandatory return of the child to the court mandated country of habitual residence. 1) If more than a year has passed. 2) The staying parent has okayed the relocation. 3) Returning would put the child in physical danger. 4) The returning would place the child in a situation in which her or his fundamental rights or freedoms are violated. For example, forcing a gay child to return to a country in which homosexuality is criminally penalized.
One thing that is not seen as a grave risk to the child is domestic abuse. Currently domestic violence is considered a custody issue to be sorted in what the courts decide to be the child’s country of habitual residence. There is absolutely no impetus to prevent children from being exposed to domestic violence.
In short, partners who flee their abusers are viewed as perpetrators of abduction under national and international laws. A spouse who takes their children while attempting to protect them and while running for their life will, under the Hague Convention, find themselves persecuted and prosecuted while their children are placed in the custody of their abuser. This places parent and child back into a violent situation often depriving them of the support of social and criminal justice services. On top of this the forced return of the child is usually at the fleeing parent’s expense stripping them of needed financial resources.
Outside of the Hague Convention are countries that place custody almost automatically in the hands of the native patent. Then there are situations in which a wife may find herself in the legal custody of her ex-husband.
Even under the best of circumstances people faced with this hellish situation will feel imprisoned in the foreign country. They often consider running, even knowing the possible consequences. The staying parent lives in constant fear that their child will be taken. Things become more tense as both struggle to control each other and the child. The courts get involved and the family’s relationships are harmed, perhaps irreparably, to the detriment of all involved.
Unfortunately, the international courts when contemplating habitual residence don’t care about the struggles of the parents. Or even about the relationships between parents and children. The court’s only concern is where the child should be located.
A group called GlobalARRK is trying to change this. The group is campaigning for a period of up to two years during which members of a family of the same nationality retain the right to return home without having to gain permission from a foreign court. This, however, would only affect families that all claim the same home country. Many times partners are part of multinational families. Often the family is living in the home country of one of the partners.
Other sources are attempting to get courts to reconsider the way they treat international custody situations. Examples include utilizing modern technology to supplement access. Requiring joint decision making. Requiring custody agreements between countries to mirror one another. Enforcing a bond to ensure custody compliance. But none of this applies to the present.
If we are contemplating international love or are considering relocating our families, how can we protect ourselves?
First, evaluate the relationship. Take a hard look. If the relationship is already under pressure adding the stress of a move, especially an international one, is not the time to make a Hail Mary pass in an attempt to salvage things. Especially if a partner is showing signs of being abusive, manipulative, or controlling.
If the relationship is strong find out if the countries involved have signed onto the Hague Convention. If so, take a look at the full text of the Hague Conference / Conférence de la Haye (Hague Conference on Private International Law)
Then we should discuss as many ‘what if’ scenarios as we can think of. For example:
What if one of us hates it?
What if the kids don’t adjust?
What happens if any of us gets sick? (Also look into living wills and wills.)
What if the marriage fails?
What happens in the case of job loss?
And as many more as we can come up with.
To be really formal type it all up and get it notarized. It may or may not be enforceable but it will probably have influence. Ideally, this should be done before we leave our home countries. But, as with nuptial agreements, it can be done pretty much at any time. The key is to have it in place before we need it.
Moving abroad is a most excellent adventure. And like all of the best adventures it carries with it an element of risk. When we add kids to that the risk it goes up exponentially. It doesn’t mean don’t go. This is simply a leap we need to take with our eyes wide open.
Sources
http://www.seychellesmama.com/raising-awareness-expat-stuck-parent/
https://www.theguardian.com/lifeandstyle/2015/may/16/the-mothers-fighting-to-get-their-children-back-home-again?CMP=Share_AndroidApp_Copy_to_clipboard
http://www.marilynstowe.co.uk/2011/04/11/the-expat’s-tale-“i’m-a-stuck-mum”/
http://expatchild.com/nobody-tells-you-this-about-moving-overseas-with-your-kids/
https://www.hcch.net/en/instruments/conventions/full-text/?cid=24
https://www.google.dk/url?sa=t&source=web&rct=j&url=http://warondomesticterrorism.com/wp-content/uploads/2014/05/FCC-9-13-Domestic-Violence-the-Hague-Convention-on-Intl.-Child-Abductions-ENG.pdf&ved=2ahUKEwiwpoWFrvbZAhVLxaYKHcIyCwIQFjAHegQIBBAB&usg=AOvVaw1qLXb88VjdKT889fVx8u0J
http://www.international-divorce.com/The-Plight-of-the-Expatriate-Spouse
https://www.globalarrk.org