Can You Relocate Overseas With the Children if There is No Custody Order
My question involves a child custody case from the State of: WA.
Hi, I'd really appreciate opinions on my situation.
I have been de facto separated from my husband for almost 7 years now. We have a 9 year old son for who I have been fully responsible, physically and financially, since our separation except for irregular visitation on his part. We are both citizens of Denmark (I am US dual national, he has green card), but our son was born in the US so is a dual citizen.
I have been trying to work with my (on-paper-only) husband to move forward on our divorce by agreement for over a year now, but he has been putting obstacles in the way (there is jealousy involved here as I now have a relationship with a man back in Denmark). The recent situation that has developed is that I want to move back to Denmark. Obviously to be with my partner, but there are several other good reasons also that I will not bore you with.
What I'd like to know right now is whether I can relocate if no divorce has been filed and there is no custody order.
(I am confused about the situation because I was told by a local lawyer earlier this year that my husband could not stop me travelling to Denmark with my son for a vacation. Other lawyers confirmed on Avvo that this was correct. (At that point I had no intention of relocating but he was threatening to stop me even traveling). But then after I returned to the US my husband told me that he could have filed a court case to get me to return if he had wanted to. Then, when I told the lawyer this -- the same lawyer that had told me earlier in the year that I could travel -- he said that yes, my husband could have forced me to return. Something maybe he could have mentioned before the trip, right?)
The situation is time-sensitive as I have been told that if I file for divorce here in the US it will take at least a year to sort out the relocation issues. But it would be important for my son socially and academically to begin school in the fall of 2018, rather than joining in the middle of the school year. I really want to relocate next summer. I would still hope to get his father's consent, but I want to gather information for all scenarios and this would of course affect whether I file for divorce (contended).
I would very much appreciate your opinions on this, thank you so much.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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Martin18
What I'd like to know right now is whether I can relocate if no divorce has been filed and there is no custody order.
Technically yes, he could try to file to force you to return from a vacation. However, unless its an abnormally long vacation you would likely be already back before he got it heard by a judge. Also, a judge wouldn't be likely to make that kind of order unless you did not come back when you were supposed to come back.
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The situation is time-sensitive as I have been told that if I file for divorce here in the US it will take at least a year to sort out the relocation issues. But it would be important for my son socially and academically to begin school in the fall of 2018, rather than joining in the middle of the school year. I really want to relocate next summer. I would still hope to get his father's consent, but I want to gather information for all scenarios and this would of course affect whether I file for divorce (contended).
There is no guarantee that you will ever be granted the right to relocate to Denmark with the child if dad does not agree. In fact, the odds are really against it.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
Thanks llworking. Your last statement is a bit of a shock. Even though we are both citizens of the country I want to move to (and therefore there is no barrier to him moving there too)? And that in WA state there is a ‘rebuttable presumption that the intended relocation of the child will be permitted"? There are nuances here - neither I or my husband have any meaningful connection to the place where we are living (he is actually unemployed right now). And he only moved here 2 years ago. I have been here 4.
Thanks for your further advice..
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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Martin18
Thanks llworking. Your last statement is a bit of a shock. Even though we are both citizens of the country I want to move to (and therefore there is no barrier to him moving there too)? And that in WA state there is a ‘rebuttable presumption that the intended relocation of the child will be permitted"? There are nuances here - neither I or my husband have any meaningful connection to the place where we are living (he is actually unemployed right now). And he only moved here 2 years ago. I have been here 4.
Thanks for your further advice..
Those are factors that might sway a judge. However, its not easy to get to relocate to another US state, its even more difficult to get to relocate across an ocean to another country.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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Martin18
Thanks llworking. Your last statement is a bit of a shock. Even though we are both citizens of the country I want to move to (and therefore there is no barrier to him moving there too)? And that in WA state there is a ‘rebuttable presumption that the intended relocation of the child will be permitted"? There are nuances here - neither I or my husband have any meaningful connection to the place where we are living (he is actually unemployed right now). And he only moved here 2 years ago. I have been here 4.
Thanks for your further advice..
That rebuttal presumption will not apply until after custody is determined and you should not assume that you'll have primary custody unless Dad rolls over and agrees.
Tread very, very carefully. There is a better-than-decent chance that you will be faced with a choice ... your new partner, or your child.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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Martin18
I have been trying to work with my (on-paper-only) husband to move forward on our divorce by agreement for over a year now, but he has been putting obstacles in the way
You don't have to put up with the obstacles. You and your divorce lawyer can forge ahead, even if he isn't cooperative.
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Quoting Martin18
Obviously to be with my partner, but there are several other good reasons also that I will not bore you with.
As was suggested, if you do so you may find that your ex- files for divorce and custody, and seeks an order that the child be returned to the U.S. pending the outcome of the custody litigation.
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Quoting Martin18
I am confused about the situation because I was told by a local lawyer earlier this year that my husband could not stop me traveling to Denmark with my son for a vacation.
Vacationing is not the same thing as a permanent relocation.
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Quoting Martin18
The situation is time-sensitive as I have been told that if I file for divorce here in the US it will take at least a year to sort out the relocation issues.
This is why you should not sit around waiting for the stars to align before getting your divorce and a custody order. You need to be proactive, so that you can move on with your life. Attempting to now sidestep the Washington courts and to relocate without either court approval or the permission of your ex- is the approach that is most likely to cause you to ultimately lose a Washington custody action your ex- might commence in response to your actions.
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Martin18
Your last statement is a bit of a shock. Even though we are both citizens of the country I want to move to (and therefore there is no barrier to him moving there too)?
Her statement is an overstatement.
If this were a situation in which you and the father were still together, or where you had a seven year history of joint parenting despite your separation, your ex- would be in a strong position to argue that the child should remain in the U.S., with his existing community, school, friends, etc., rather than relocating with you to Denmark. However, by your account, you have primary physical custody for the past seven years and your ex- comes by only for occasional visits.
If your ex- seeks custody, he would have to overcome the advantage you have in a custody battle as the child's long-term, established primary custodian. Contrary to the suggestion above, your desire to move overseas doesn't trump every other best interest factor in a custody case. The court should be expected to consider the impact of relocation on the relationship between the child and the other parents, your reasons for moving, the advantages to the child from moving, and the like, but the mere fact that we're talking about international relocation does not mean that a court will automatically be inclined to reject your request.
I suggest you get moving with your divorce lawyer to commence a divorce and custody case, and that you speak to your ex- about whether he is even going to try to seek custody, and to feel out how he would feel about your relocating back to Denmark. If your ex- is willing to grant you permission to relocate even without your filing a divorce case, you can discuss with your lawyer whether and how to formalize the agreement (in case it is later denied), and then consider how you might divorce and seek custody once you are in Denmark.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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Quoting
Mr. Knowitall
You don't have to put up with the obstacles. You and your divorce lawyer can forge ahead, even if he isn't cooperative.
As was suggested, if you do so you may find that your ex- files for divorce and custody, and seeks an order that the child be returned to the U.S. pending the outcome of the custody litigation.
Vacationing is not the same thing as a permanent relocation.
This is why you should not sit around waiting for the stars to align before getting your divorce and a custody order. You need to be proactive, so that you can move on with your life. Attempting to now sidestep the Washington courts and to relocate without either court approval or the permission of your ex- is the approach that is most likely to cause you to ultimately lose a Washington custody action your ex- might commence in response to your actions.
Her statement is an overstatement.
If this were a situation in which you and the father were still together, or where you had a seven year history of joint parenting despite your separation, your ex- would be in a strong position to argue that the child should remain in the U.S., with his existing community, school, friends, etc., rather than relocating with you to Denmark. However, by your account, you have primary physical custody for the past seven years and your ex- comes by only for occasional visits.
If your ex- seeks custody, he would have to overcome the advantage you have in a custody battle as the child's long-term, established primary custodian. Contrary to the suggestion above, your desire to move overseas doesn't trump every other best interest factor in a custody case. The court should be expected to consider the impact of relocation on the relationship between the child and the other parents, your reasons for moving, the advantages to the child from moving, and the like, but the mere fact that we're talking about international relocation does not mean that a court will automatically be inclined to reject your request.
I suggest you get moving with your divorce lawyer to commence a divorce and custody case, and that you speak to your ex- about whether he is even going to try to seek custody, and to feel out how he would feel about your relocating back to Denmark. If your ex- is willing to grant you permission to relocate even without your filing a divorce case, you can discuss with your lawyer whether and how to formalize the agreement (in case it is later denied), and then consider how you might divorce and seek custody once you are in Denmark.
If I overstated in one direction I have to say that you truly overstated in the other direction. The odds really are not in her favor to get permission to relocate overseas. Its not a total winner for dad by any means, but the odds would be in his favor to keep the child in the US. Just as the odds would have been to keep the child in Denmark had the situation been reversed.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
Does the child already have a US passport? If not, that will be a big sticking point. You will need your husband's signature in order to get that....
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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llworking
If I overstated in one direction I have to say that you truly overstated in the other direction.
How about responding to what I actually said, as opposed to imagining things I didn't say?
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Quoting llworking
The odds really are not in her favor to get permission to relocate overseas.
Depending on the full facts, the odds may be 100% in her favor. For all you know, dad won't even object.
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Quoting llworking
...but the odds would be in his favor to keep the child in the US.
Please cite the statutes and/or case law that you are looking at that will support your position.
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Quoting llworking
Just as the odds would have been to keep the child in Denmark had the situation been reversed.
When did Denmark adopt custody laws that were exactly the same as those in the State of Washington?
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Quoting
LegalWriter
Does the child already have a US passport? If not, that will be a big sticking point. You will need your husband's signature in order to get that....
The child has recently traveled to Denmark for a vacation, so that's a non-issue.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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Mr. Knowitall
How about responding to what I actually said, as opposed to imagining things I didn't say?
I read what you had to say as giving mom a little too much encouragement. I don't think that's in her best interest.
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Depending on the full facts, the odds may be 100% in her favor. For all you know, dad won't even object.
She has said nothing to indicate that dad is unfit and she has said things to indicate that dad is likely to object. He wasn't happy about the child being taken there on vacation.
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Please cite the statutes and/or case law that you are looking at that will support your position.
When did Denmark adopt custody laws that were exactly the same as those in the State of Washington?
Surely you have heard of the Hague Convention? However, you also did not cite any case law backing up your position.
Re: Separated, No Child Custody Order, Can I Move Back to Home Country
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llworking
I read what you had to say as giving mom a little too much encouragement. I don't think that's in her best interest.
Which is to say, my "overstatement" exists only in your imagination.
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Quoting llworking
She has said nothing to indicate that dad is unfit and she has said things to indicate that dad is likely to object.
She has stated that dad is largely an absent parent, is presently unemployed, and may not even object if she asks him about moving back to Denmark. If you don't think any of those factors could affect the outcome of a custody case, you're probably alone in your thoughts.
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Quoting llworking
Surely you have heard of the Hague Convention?
So you think that no custody law exists in any nation that has adopted the Hague Convention, except for that convention, and that in all member countries it is all but impossible to get a court to approve international relocation with the children? You're digging yourself into a deeper and deeper hole.
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Quoting llworking
However, you also did not cite any case law backing up your position.
So your excuse for posting incorrect claims and failing to back them up with any authority when asked is that other people have not cited authority for their correct, unchallenged claims?
Is there actually a point of law you need me to explain and substantiate for you?