Returning with children from abroad after divorce

Chapters of the article

• Marriage to a foreigner
• Obligation to return children to the foreign country
• What to do to ensure your actions are not considered kidnapping?
• From law practice: abduction or “non-abduction”?

Marriage to a foreigner

According to current statistics, there is an increasing number of mixed marriages, or in the words of the law, there is a “foreign national element”. Often the family initially lives together abroad with the children. The problem arises if the marriage with the foreigner does not work out and one of the spouses wants a divorce. In this case, you cannot pack your children’s bags and go with them to your home country without further ado. If you live abroad for a long time and have minor children together, you will necessarily need the consent of the other parent to move back to the Czech Republic. If you do not obtain this consent and leave despite this fact, your actions may be characterised as kidnapping and the other parent may rightfully demand the return of the children.

Obligation to return children abroad

The issue of returning children to their habitual residence is governed by the Hague Convention on the Civil Aspects of International Child Abduction, together with the EC Council Regulation which supplements and implements it and in some respects imposes even more stringent obligations on Member States to return the child promptly to his or her habitual residence. The aim of this legislation is precisely to ensure the prompt return of children unlawfully removed or detained in a Contracting State. Unfortunately, what may appear to you yourself to be a return to your roots at a time when nothing is holding you back in a foreign country may, in certain circumstances, in the eyes of the law, be exactly that situation.

In the Czech Republic, we have specialised chambers and one competent court that decides on possible return. In these initial proceedings, the court decides exclusively whether or not the child will be returned to the place of habitual residence. It therefore does not decide on the upbringing and maintenance of the child or on the parents’ contact with the child. Parents often confuse this and then, as part of their defences, defend themselves on facts which are not the subject of the proceedings. However, the legal rules contained in the Hague Convention are quite clear and strict.

What can you do to ensure that your actions are not considered abduction?

The fact that you want to return to your hometown with your child is of course a legitimate request and you do not have to worry about being labelled an abductor just for that. However, it is important to bear in mind that it is not enough to simply put the child with the backpack on the plane to the Czech Republic, but you need to prepare the situation a little in advance.
First of all, you should communicate with the other parent about your intention to return home and set up common rules for the care of the child. You should also talk to your offspring about the possibility of travelling so that it is not a shock to them. The other parent should agree with your intention and the joint agreement and should ideally give you their consent to leave in writing. This consent should ideally be in English with an official translation into the language of the country from and to which the trip is being made. If an agreement is possible, arrange a plan to care for the child, at least temporarily (pending the court’s decision). It is also worth having this document in writing.

Even if an agreement is not possible and the other parent does not agree to relocate the child, all is not lost. In such a situation, however, you need to obtain his or her consent through the courts. Although these matters are dealt with by international conventions, it is advisable to check the law and practice in the country where you are currently located so that you are not surprised.

From law practice: kidnapping or “non-kidnapping”?

Our client, due to long-term domestic violence, left abroad (EU) with her child without the consent of the child’s father. The Czech Embassy in the country in question even had to assist in the case. The father of their common offspring did not agree with the situation and filed a petition to return him to the country where he lived. We have had quite extensive and lengthy proceedings in the case.

It was based on the resolution of the legal question of whether or not the child was habitually resident in the father’s country prior to the relocation. In that context, a distinction must be drawn between habitual residence and mere temporary presence in a particular place. The stay must be characterised by a sufficient degree of permanence and should last for a certain period of time. The emphasis is on achieving a sufficient degree of continuity in the child’s residence/stay in a particular country so that he or she has developed a ‘home’ relationship with it.

After lengthy proceedings, the court held that the child was habitually resident in the Czech Republic and thus dismissed the father’s application. The mother, however, could only breathe a sigh of relief. As we have stated above, this initial decision of the court only addresses the question of whether or not the child may be taken abroad (or from abroad back to the Czech Republic). However, it is still not decided at the moment which parent will be given custody of the child and what child support will be set.

The mother therefore had to file a new petition with the court in the Czech Republic and further proceedings have begun. All documents were served abroad and the father began to obstruct the proceedings, did not collect the mail and did not appear at the hearing. Not only did he not cooperate with the court proceedings, but he also refused to pay any maintenance to his mother and claimed that he could not tell her the amount of his income. Nevertheless, in this difficult situation, we were able to obtain provisional custody of the children and provisional maintenance for the father. But the matter is much more complicated than that. There are now ‘traditional’ custody proceedings pending and parallel criminal proceedings against the father abroad. The father has also not stopped fighting and is currently seeking contact from his country’s embassy in view of the dual citizenship of the children.