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Dear Socrateaser,

Wow!! I didn't think I'd get a response already over the weekend!

Thank you very much for your quick and detailed reply.
 
I have been searching everywhere on the internet for a consistent definition of "habitual residence" and how it is interpreted in Denmark.   There is nothing that I can claim 100% certainty on, and I want to be 100% certain that I can do this.  

So, it looks like I will have to talk to an attorney sooner rather than later.  But rather than talking to a Danish one, might it be better to start dealing with a good international lawyer in WA state who can probably find out from danish contacts what the rule is if necessary?

Unfortunately, we spent a LOT of money making this move and now I see my own assets going bye bye to do all this.  But, if I can end up in the same city with my kids then it will be worth it.

Thanks again for your help.

Dear Socrateaser,

I posted this question on the custody board but someone kindly pointed me to this board and thought you might be able to help.

I am a US citizen. My wife is a Danish citizen.  We have been married and until recently lived in Washington State for 9 years.  We have 2 children (aged 3 and 5) born and raised in Washington State.

Unfortunately, we have been having numerous marital problems for several years.  I was VERY close to divorcing her in May. She assured me that many of our problems were due to her missing Denmark, that she would be less vicious there, she would have the strength to go to counseling etc.  

Despite warnings from family and friends, I reluctantly agreed to us moving to Denmark in Aug this year to see if that would work.  She and the kids moved on August 21 and I followed a month later.  

Now that we are here in DK, we are having the same problems.  Naturally, she won't move back to the US because it would "traumatize" her to leave denmark, even though she does admit that she didn't live up to her end of the bargain here.  

She claims she still wants the relationship to work here but I found out that she mentioned to a friend of hers that she wanted me "out of here" and mentioned she had called a lawyer to talk about it.

Unfortunately, I am quite attached to my children and do NOT want to have to live 4,000 miles away.  By the way the children still say they want to move back almost every day.  

I don't absolutely have to have custody of the kids, I just want to be in the same city at least.  Obviously I can't live in Denmark due to their strict immigration laws if I'm divorced.  My wife has a permanent residence card still for the US.

I do not know anything about international divorce law so I have some questions:

1) Since the kids have been in Denmark only a little over 2 months is it legal for me to just take them back to the US and file for divorce there?  (A number of friends and family are recommending this) Or is that seen as "kidnapping to gain advantage" according to the Hague convention?

2) If I can't take the kids back with me to file divorce, is it still better to go to the US myself and file since the kids could be seen as not attached to denmark and the trial would still have to be in the US?

3)  Given that the mother has a US residence card, how likely is it that the courts would rule that it's in the best interests of the children to not be separated from their father by 4,000 miles, and that if the mom wants custody she should move back to the states?

4) If the divorce has to be filed in Denmark am I just basically out of luck?

Thanks in advance for your comments.  Obviously I'll need to eventually contact a lawyer but I'd like to see what my general chances are.

Hi KittyC

thanks for your response.  I recall you responding to my earlier post in the custody section too.   Unfortunately, it seems the laws in my situation now are more complex than your situation was in 93.  I don't think the Hague convention laws were as fleshed out then as they are now.

An international divorce lawyer spoke to my father over the phone (it was kind of hard for me to do that discreetly here) for an hour.  That's how I got my info.  He said it would not go over well for me to take the kids on a plane and just get out.  Furthermore, she could even file a temporary custody hearing the minute I take the kids--thus, altering the implied consent of joint custody.  I could file for divorce in the US but it would be hard at this point to get the Danes to accept the outcome and hand over the kids if I was awarded custody.

So, anyway, given that I am already screwed and would probably have to fight my battle at considerable cost in a danish court, I just want to know how other long distance settlements (either international or even in the same country) compare as far as visitation etc.  It's possible that she may be offering me a BETTER visitation deal than any courts would if she gets to keep the kids where she is.

I posted a while ago about my situation in the custody board.  
Unfortunately, my situation has turned out to be as suspected.

Basically I am a dad (US citizen) who recently moved to Denmark with my wife (Danish citizen) and 2 kids ( age 3 and 5 lived in US all their life until 3 months ago).   Wife now conveniently wants a divorce (although she said the move to Denmark would improve our relationship and her  behavior!!).

She will not move back to the US so that all of us can live in the same city (she still is a permanent resident there).  Believe it or not, I apparently can't take the kids back with me to the states now and file divorce.  So I stand to lose my kids.  I might have a small chance  to win custody in a huge expensive battle but she has given me the following offer to settle out of court thereby keeping expenses and hassle down:

I get the kids 8 weeks in the summer in the US and 5 weeks in the winter.  We split the airfare.   Neither of us have HUGE assets so we are calling that even.  She pays for support of the kids during the 9 months she has them in DK, I pay for support for the 13 weeks in the US (including summer camps).  Obviously I would get this agreement legally binding this time.

I am totally bummed about losing connection with my kids 9 months out of the year (we are VERY attached)  On the other hand,  I feel I could get stuck alot worse if I don't win in court.  What do you all think? Is this settlement FAIR?  If it did go to court (probably in Denmark now) how would the courts decide visitation etc?  Would it be worse, better etc?  Anyone with experience in long distance visitation settlements?

Thanks in advance for your responses.

Sherry1,

Thanks for your suggestion.  I have emailed soc and already got a response!

Davy,

Thanks for your reply.

you wrote:

"A parent can take the children anywhere PRIOR to the filing of divorce/custody"

Do you know this for SURE?

The Hague convention stuff seems ambiguous about this.  It almost seems to assume it's kidnapping if I take the kids back to the US without telling the mom--even if there's no filing yet.  But, I could be misinterpreting it.  If you know more about this could you please tell me?

Also as soc pointed out the Hague convention seems vague about what constitutes "habitual residence."  Do you know more about how that's interpreted?

Thanks in advance.

I am a US citizen. My wife is a Danish citizen.  We have been married and until recently lived in Washington State for 9 years.  We have 2 children (aged 3 and 5) born and raised in Washington State.

Unfortunately, we have been having numerous marital problems for several years.  We were VERY close to getting divorced in May. She assured me that many of our problems were due to her missing Denmark, that she would be less vicious there etc.   Despite warnings from family and friends, I reluctantly agreed to us moving to Denmark in Aug this year to see if that would work.  She and the kids moved on August 21 and I followed a month later.  

Now that we are here in DK, she engages in what I feel is the same psychological abuse and wierd lies that she engaged in before.  Naturally, she won't move back to the US because it would "traumatize" her, even though she does admit that she didn't live up to her end of the bargain here.  She claims she still wants the relationship to work here but, based on some emails of hers to a couple of her friends, I now have reason to suspect that she planned to move here and divorce me when the kids could be seen as attached to Denmark.  

Unfortunately, I am quite attached to my children and do NOT want to have to live 4,000 miles away.  By the way the children still say they want to move back almost every day.  I do not know anything about international divorce law so I have some questions:

1) Since the kids have been in Denmark only a little over 2 months is it legal for me to just take them back to the US and file for divorce there?  (A number of friends and family are recommending this) Or is that seen as "kidnapping to gain advantage" according to the Hague convention?

2) If I can't take the kids back with me to file divorce, is it still better to go to the US myself and file since the kids could be seen as not attached to denmark and the trial would have to be in the US?

3) I don't absolutely have to have custody of the kids, I just want to be in the same city at least.  Obviously I can't live in Denmark due to their strict immigration laws if I'm divorced.  Mom has a permanent residence card still for the US.  How likely is it that the courts would rule that it's in the best interests of the children to not be separated from their father by 4,000 miles, and that if the mom wants custody she should move back to the states?

4) If the divorce has to be filed in Denmark am I just basically out of luck?

Thanks in advance for your comments.  Obviously I'll need to eventually contact a lawyer but I'd like to see what my general chances are.