Desperate International Custody Questions

[StuckInDenmark]

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.

[socrateaser]

>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?

Your ability to remove the children from the jurisdiction may be affected by the internal law of the Nation of Denmark. I cannot speak to this at all, and if you are interested in knowing for certain, then I suggest you contact a Danish attorney.

The Hague Convention is an agreement between nations to obtain the "return" of children unlawfully removed, not one which restrains their removal. The Convention does not take effect at all unless a child is removed from a signatory nation wherein that child has "habitually" resided.

Of course, the term "habitually" is nowhere defined in the Convention, so it is subject to the interpretation of local authorities. In Washington State, the term would likely be equated to the six month "home state" status of the Uniform Child Custody Jurisdiction Act, which is in effect in that jurisdiction. However, in Denmark, I have no clue how a court would define "habitually" so as to determine whether the children should be returned.

Regardless, your problem is not returning the children to Washington -- it's removing them from Denmark. And, my advice in this is frankly, very simple:

1. Go talk to a Danish attorney and do NOT provide your actual identity, because I don't know if Danish attorneys must treat their client's communications as privileged. If not, you could find that both the authorities and your spouse will be alerted and that will be the end of the story.

2. If the attorney explains that Denmark Law would treat you as a kidnapper if you attempted to remove your children from the jurisdiction without the consent of both parents, then you will know where you stand if you try to remove them.

3. If the attorney tells you that you're ok to remove them because you are a parent and no court has yet restrained their removal, then I advise you to take your kids for a little ride -- to Washington State, as fast as your little ol arse can get them on a U.S. air carrier.

Make certain that it "IS" a U.S. carrier, because that will give you a bit of an edge, should the authorities want to remove the kids from the plane, while in transit.

4. Alternatively, you could seek the protection of the U.S. consulate. However, even if they give you and the kids protection, you won't be able to get out of there to an airport without risking arrest by Denmark authorities.

5. With respect to #2 above, if the attorney states that you would be kidnapping the kids to take them without your spouse's consent, then you may still want to seriously consider taking them on that little ride with you anyway. Maybe, grandma and grandpa from the U.S. would like to come visit for a few days, and when you take them back to the airport, maybe you'll just hop on board and return with them and the kids.

Maybe, you can take a drive into a neighboring jurisdiction -- maybe, you could drive all the way to England, and then get on a plane to the USA.

I don't know how you can best pull this off, but, if you stay in Denmark and file for divorce or custody, the chances that the local authorities will permit you to remove the kids to the U.S., is likely zero. So, that would be my absolute last choice of options.

Good luck.


>
>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?

No. Worst move you could make if custody is your goal.

>
>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?

In Denmark? Zero.


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

Yep.

[StuckInDenmark]

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.

[socrateaser]

>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?

The chances of there being a WA attorney who knows the current application of the definition of "habitual" under the Hague Convention as applied to Danish law is almost zero. Check with your local U.S. consulate.