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NSW Family Court - What to File to Bring Kid to US?

Discussion in 'Family Law Forum' started by mrs morgan, 22 September 2016.

  1. mrs morgan

    mrs morgan Active Member

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    Hi,

    I'm new to this and my case is a little easy yet complicated.

    Here it goes - I have been divorced since 2012 and I have 3 children out of the relationship.

    We never set who the has sole custody of children. I wanted it that way because family court costs and, just to be fair, but little did I know that the father of my kids will be acting just like the women do the fathers.

    We came to an agreement that the children should stay with him because of the school that they have been going to since kindergarten. I had swapped school previously and the children weren't happy.

    The kids are grown; their ages are 17,13 &11.

    The father has moved on and gotten married and has a child; I'm happy for him. I'm in a relationship myself and I'm overseas at the moment. My partner is in the US. I could not take any of my children because passport and consent are needed to leave country.

    I will be coming back to Australia and I want to get some help on how and what to file. I want to know whether I could take one my children back to the US since my significant other lives there. I would like some help on steps I should take.

    Thank you
     
  2. AllForHer

    AllForHer Well-Known Member

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    Which child are you looking to take abroad? The 17, 13 or 11-year-old? Do you want passports for all three, or just one? Would the travel be for a holiday, or for relocation?
     
  3. sammy01

    sammy01 Well-Known Member

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    You wanna uproot the kids and take them away from everything they know / have here and move them to the USA?

    You're kidding right?
     
  4. mrs morgan

    mrs morgan Active Member

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    All three need a passport but, yes, I want to take one child.
     
  5. mrs morgan

    mrs morgan Active Member

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    Sammy01, yes, I know what I will be doing,, but I deserve to be with my children, too. I gave my ex a lot of leeway and he is abusing my kindness and using the children. They are not allowed to call me or text me.
     
  6. AllForHer

    AllForHer Well-Known Member

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    Wrong. Your children have rights to have a relationship with their parents, not the other way around. Don't make the mistake of thinking that being a parent gives you special privileges and entitlements before a court of law, because it doesn't. Family Court is only concerned with what's best for the children, not what the parents think they deserve for themselves.

    The process is this:
    1. Organise a family dispute resolution conference with the father to see if he will consent to a passport application and travel for the kids.
    2. If agreement can't be reached, take the s 60I certificate you receive from mediation and file an initiating application for parenting orders with the Court.
    Now, you've asked about getting passports, but your last post suggests to me that this is about more than just a passport application. This is about international relocation, and I daresay dad would have grounds for refusing the passport application because of the likelihood of the children being abducted internationally without his consent. I also don't think you will be successful in having parenting orders made for either the 13-year-old or the 11-year-old to relocate to the United States with you, for the following reasons:
    • By agreement between the parties, the father is the primary carer;
    • The children would most likely be considered settled in the current household, school and community;
    • The children are, by your admission, happy in their current situation;
    • You'd be asking the Court to uproot the children from these circumstances, to take only one of them abroad, away from their siblings and the primary carer parent;
    • You'd also be asking this of the Court for your own benefit of being with your significant other and because you feel you 'deserve' to be with your children, not because it's what is actually in their best interests.
    The 17-year-old may be a different story, simply because there's a very good chance you wouldn't end up with any parenting orders before the child turns 18, at which time parenting orders become invalid. Even if that weren't the case, the Court would probably give the 17-year-old's views some significant weight, so if he wanted to go to the United States with you, the Court probably wouldn't stop him.

    But that's just my view. Relationships Australia will be able to organise a family dispute resolution conference for you, as the first step in the filing process.
     
  7. mrs morgan

    mrs morgan Active Member

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    Ok, I understand and I know it's for the best interest for the children. I know for a fact my 11-year-old is not happy with her father. I know he threatens them. I know my ex can't restrict me from seeing my children he thinks he has the power. I never power played when the children were in my primary care I did not refuse him to see the children at all.

    I don't know why his new wife is not as understanding because her son is with his father who has full custody. And with my ex it's all about the money. Like I said, I deserve to be a part of my children's life. I was the one who nurtured them for 9 months under my heart and gave birth to them and looked after them when they were sick while their father was getting drunk with his mates.

    I know the children need to be put first and what's best for the children but he is using the children as punishment. But yes I definitely need to discuss with my ex about our children and come up with a plan that we can both agree on.
     
  8. AllForHer

    AllForHer Well-Known Member

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    I cannot stress this enough: it has nothing to do with what you think you deserve. You're not owed anything, you don't have any legal rights to be in your children's lives. Your children, they have rights. You don't.

    Technically, your ex can restrict you from seeing the kids because there aren't any orders currently in place, and you can technically do the same, but in that case, he can take action if you choose to unilaterally remove them from his care, relocate them overseas, or even insist on contact that disrupts their current routines and lifestyles. If you act on the assumption that your ex can't restrict you from seeing the kids, you will probably very swiftly find yourself subject to parenting orders that do exactly that.

    Likewise, giving birth to children and caring for them when they're sick does not enable you any more power than the father to decide what's best for them. To the contrary, it's very much the father who has the upper hand, here, since the children live with him by your agreement, and with all due respect, it's not him who is leaving his kids behind to move to another country and be with his girlfriend.

    Further to that, the 11-year-old's discontent with her father isn't going to persuade the Court that she would be better off living with you in another country away from her siblings. First, an 11-year-old is not going to be considered old enough and mature enough to grasp the long-term impacts of such a move, and second, 'he threatens them' can have all kinds of meanings, including threatening them with no dessert if they don't eat their vegetables.

    Finally, I can't see how it could successfully be argued that it's best for an 11-year-old to go from living with dad, step-mother and siblings in Australia, to living with mum and a boyfriend the child has never met in a foreign country.

    I am sorry I don't have happier guidance to give, but I prefer to be realistic than to send parents down the long and loathsome path of Court proceedings with what I perceive to be a limited chance of success. You might be able to get passports for them, but legal advice will probably tell the father not to agree without first having other parenting orders in place first so there's some protection should you take the kids abroad and not return them.

    I hope this helps.
     
  9. mrs morgan

    mrs morgan Active Member

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    Yes it helps a lot. I'm not kidnapping the children, I'm just saying that the children should have both parents in their life.
     
  10. AllForHer

    AllForHer Well-Known Member

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    I agree that children should have meaningful relationships with both parents, as does the Court, but the way to make that happen if you relocate to the United States isn't to take one of the children with you. It's to negotiate care arrangements that enable them to spend time with you from time to time and within reason.

    For example, you might consider an arrangement that enables the kids to spend the Term 1 and Term 3 holidays with you each year, plus three or so weeks over the Christmas break.

    Or you might consider guaranteeing their time with you every time you travel back to Australia.

    I just don't think getting an order for one child to relocate to a foreign country is a realistic goal, that's all.

    In any case, organise mediation with the father, even if it's just to stake out his position on the whole scenario.
     

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