Desperate International Custody Question

[StuckInDenmark]

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.

[Sherry1]

just make sure to read and follow his guidelines thoroughly.  I seriously doubt anyone on this board can help you with international child custody.  If anyone can answer your questions, Soc can.

[Davy]

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

The U.S WOULD/SHOULD DEFINITELY be considered the HOME jurisdiction with significant connection.

Returning to the U.S with the kids would not be considered forum shopping on your part and from your description she is not only manipulating her husband and children but trying to gain an advantage as a Danish citizen (ie forum shopping).

For some insight, check out custody jurisdiction and parental kidnapping laws / Hague stuff on the Articles Index of SPARC's home page.  Will help when communicating with Soc.

[StuckInDenmark]

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.

[StuckInDenmark]

Sherry1,

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

[Kitty C.]

As a married couple (currently, anyway) you both are considered to have 'joint custody'.  As such, both of you are allowed to take the children anywhere you choose.  If that wasn't the case, one of you would be asking the other permission just to take them to the ice cream store!

Back in 1993, DS's father and I had a very flimsy, brief joint custody agreement.  In fact, it was ONLY one paragraph long, specifically stating that we both had joint legal and physical custody.  (Long story on how that happened!) Then we moved from CA to IA and 5 months later DH's dad absconded with DS back to CA without my knowledge.  I even called the FBI, considering my 'ex' (we were never married) was a legal Canadian citizen and could have taken DS over the border.  Because of the 'agreement', the FBI said their hands were tied!

Get those kids and get on a plane for the US!  NOW!

[Jade]

>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.
>
>

I don't know the answers to your questions, but I do suggest that you get a lawyer who is familiar with cases such as yours.