Parents launch separate legal actions in the UK and the US for custody of their child

Children|Cohabitation|Divorce|News|September 16th 2013

The High Court has granted a US woman’s application for a residence order for her 12 year-old daughter, while her ex-partner pursues separate proceedings in the US.

In N v K, the woman began a relationship in the US with an American man and their daughter, now 12, was born in that country.

After they separated, the woman began a new relationship with a Briton, eventually marrying him. She applied to take their daughter on holiday with to the UK and the father was opposed to this, applying for sole custody of the girl and a legal order prohibiting removal of the girl from the US.

The mother then applied for permission to relocate with the child, called ‘M’ in case reports, to the UK for two years and the issue went to a custody hearing. She was granted permission for the relocation but the former couple received shared parental responsibility and a timetable of contact (visits) was drawn up for the father.

At the end of the two years, the former couple agreed to an extension for a further two years, although the father had the right to call for his daughter’s return during that time. He claims to have done so but the mother disputes this. The daughter continued making regular visits to her father in Florida during school holidays throughout this period, returning to her mother in the UK each time.

In August last year, the father launched proceedings in the US courts for an order of paternity and his daughter’s return to the US. However, the mother was apparently not informed until the following February. When she received notice, her solicitors wrote to her ex-partner’s attorneys in the US asking the father to agree to an order that their daughter had acquired habitual residence in the UK, but he refused.

She then launched proceedings in the UK, seeking a residence order for her daughter. The father disputed the jurisdiction of the English courts, sayings proceedings were already under way in the US.

Late last month, despite a lack of liaison up to that point between the UK and US courts, an American judge found in favour of the father, ordering that the  girl be returned to the US. He declared:

“The Court finds that England does not have jurisdiction over the Petitioner/Father nor the minor child. In fact, all parties to this proceeding including the Petitioner/Father, Respondent/mother and the minor child are citizens of the United States.”

But when the mother’s action came before the High Court here, Mr Justice Cobb ruled in her favour. He noted:

“M has lived in England now for over six years, nearly one half of her life. On the evidence presented to this court she appears thoroughly “integrated” here. Her mother has married a British national and they have made their family home here for many years; M’s mother and step-father have full-time employment here. M has been at school here for the last six years, recently moving to a senior school. She excels at school, and has a huge range of extra-curricular pastimes. Her social life and friends are here; she is said to be popular among her peers. Her half-sister was born  here and has lived all her life here with M in her family.”

The judge added:

“…I have no hesitation in concluding that M is habitually resident in England & Wales. She could not in my judgment be regarded as habitually resident in any other country.”

He continued:

“I very much hope that the father, and indeed the Florida Court, will acknowledge the value to M, and to the parties, in the proceedings being conducted in this jurisdiction. Any welfare-based enquiry focusing on M’s best interests going forward, which would be likely to include the ascertainment of M’s views given her age, would surely be best conducted in the country which has been her home for such a significant time, and in which she is, in my judgment, habitually resident. It follows that the Court of England and Wales undoubtedly, in my judgment, has jurisdiction to entertain the mother’s application.”

Having referred to “the unsatisfactory position of applications proceeding in two separate jurisdictions”, Mr Justice Cobb arranged for the UK judgement to be sent to the US judge hearing the father’s application.

Author: Stowe Family Law

Comments(4)

  1. Luke says:

    “At the end of the two years, the former couple agreed to an extension for a further two years, although the father had the right to call for his daughter’s return during that time. He claims to have done so but the mother disputes this.”
    =====================================

    The problem with this is what the English courts are saying here is that if you are reasonable and cooperative (i.e. the father allowing the child to stay for another 2 years in the UK) then that can be used against you by the parent with custody later on – because they can claim ‘integration’ to the country that they are in.

    It is teaching us that to be as uncooperative as possible works – if the father had refused to extend the residency in the UK for another 2 years maybe now the girl would be at school in the USA and would be ‘integrating’ there…

    What a mess 🙁

  2. Tulsa Divorce Lawyer Matt Ingham says:

    I’ve never heard of a family doing this before.

  3. Bill says:

    It’s always amusing to see the courts preferring step-father involvement to biological father involvement, when all the research shows that step-fathers are just as dangerous as the selfish mothers who apply for residence and relocation.

    As much as I am opposed to draconian adoption policies in the UK that remove children from their biological parents simply because they are poor, I’ve come to feel that where two parents are so extraordinarily and brutally selfish and deranged as to get involved in a relocation case, they have proven themselves unworthy, and the children should immediately be put up for adoption. (Of course, no lawyers would support such a measure though, because it would serve as a deterrent to conflict, and anything of the sort is not good for profits).

  4. Steven F says:

    Hello:

    I seek your help. I am a US citizen who lived in london for seven years and possess a indefinite leave to remain visa in the UK, married, and we have a son. My ex wife filed for divorce and at the time I was told that I would have unlimited access to my son after I returned back to the USA but this has not proven to be the case. My ex wife has demanded I hand over my son’s US passport and Consular birth certificate as well as well as changing his given name taking my last name out of his life. She has extorted monies which I would have gladly provided for various family needs without her threats, always with the proviso that if I do not do so she will never allow me to see my son again. She has blocked my requests for allowing my son to visit me in the USA and has never met my side of the family. I seek you opinion on how I can proceed to get a copy of my son’s USA passport renewed and I hold it and his USA consular birth certificate as I have my son covered on my health insurance as well as be allowed to have him visit me in the USA on holidays as well as have unsupervised access to my son on an un encumbered basis? Currently, I am only allowed to talk to my son for 15 minutes on Sundays right before he is to go to bed as well as visit him in London, only on her approval and dictate on dates and times. Although, she does allow me to stay at their home during my visit, she remains hostile and controlling and this arrangement is only done because I give her extra money and her parents are strongly on my side allowing for this arrangement. As her parents are older and divorced themselves with plans of moving to other countries I fear even this small accommodation will not last. Lastly the USA will not allow me to apply for new USA passport documents for my son unless my ex wife accompanies me which she has refused to do on numerous occasions. Please advise. Many thanks and kind regards. Steve

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