Leaving the country with his daughter

Mr. Incognito

You are moving the goal posts now. When did we start petitioning the courts?

Anyway same rules apply. Kid can be Germany. Mommy can be German. Daddy can be German. Mom may want to go to Germany. If the dad is here and doesnt want the child to go and child is settled and cared for then the court will keep the child here.

Whatever is best for the child.

zeffabelli

Mr. Incognito wrote: »

You are moving the goal posts now. When did we start petitioning the courts?

Anyway same rules apply. Kid can be Germany. Mommy can be German. Daddy can be German. Mom may want to go to Germany. If the dad is here and doesnt want the child to go and child is settled and cared for then the court will keep the child here.

Whatever is best for the child.

No I am not moving the goal posts, I was always talking about a decision made by the judiciary, not a kidnapping involving the Hague convention.

Yeah I am not convinced the court would do that necessarily.

Mr. Incognito

Well, your points were that if mommy has money the courts wil take it into account and also look at citizenship.

You still believe those points?

CelticRambler

zeffabelli wrote: »

But doesn't that refer to the status quo custody arrangement...so it would depend on what custody order is in place...if there is no custody order then in the case of unwed parents its the mother, and obviously in divorce, bar a sole custody order that it is to the defaul residence...in the case of abduction..

No, no, and no.

Once again, the child has a habitual residence of its own in a defined legal jurisdiction. The habitual residence is not a specific house/building: it is the the state, or autonomous region within the state (e.g. a child resident in Scotland cannot have decisions made about it in the courts of England & Wales).

The fact that a court may have granted custody, even sole custody, to one parent does not give that parent the right to remove the child from the jurisdiction under any circumstances, unless already provided for in the order granting custody, or subsequent orders.

The mother has no default right to care for their child exclusively nor make unilateral decisions on its behalf where there is a recognised father.

Habitual residence is earned by one's relationship with society and citizenship does not come into it. So in the case of the German mother, her habitual residence is Ireland, and neither the German courts nor any others have the power to make rulings concerning her family life.

As I indicated above, cheap air travel (combined with EU rights of free movement) leads people to believe that you can just hop on a plane and fly off to another country any time you want, with anyone you want. That's not the case when it children are involved.

Peregrinus

zeffabelli wrote: »

So even if they are in THIS jurisdiction, the state can't really force non non citizens to continue to reside here, other than prison.

But the State can't really force citizens to continue to reside here, either, other than prison.

So, yeah, citizenship is a non-issue.

If the parents are in dispute over the child, and the issue ends up in court, the paramount consideration for the court will be the best interests of the child. They's look at emotional security, the need to foster family relationships, the need to provide physical safety, food, shelter, clothing, education, etc. At the margins, money may be an issue, if one parent lives in significant poverty. But the courts are much more likely to tackle that by ordering higher maintenance than by depriving that parent of custody. Once you get to a point where both parents can provide what Dev would have called "frugal comfort", money doesn't really enter into it further.

And it's hard to see that citizenship would ever be an issue in determining where the child's best interests lie.

zeffabelli

Peregrinus wrote: »

But the State can't really force citizens to continue to reside here, either, other than prison.

So, yeah, citizenship is a non-issue.

If the parents are in dispute over the child, and the issue ends up in court, the paramount consideration for the court will be the best interests of the child. They's look at emotional security, the need to foster family relationships, the need to provide physical safety, food, shelter, clothing, education, etc. At the margins, money may be an issue, if one parent lives in significant poverty. But the courts are much more likely to tackle that by ordering higher maintenance than by depriving that parent of custody. Once you get to a point where both parents can provide what Dev would have called "frugal comfort", money doesn't really enter into it further.

And it's hard to see that citizenship would ever be an issue in determining where the child's best interests lie.

Right but people are talking in universals here with a big unknown variable at play, and that is the specificity of the non custodial parents relationship with the child.

2. Citizenship does count and it does not necessarily supersede the courts perceptions of best interest of the child, particularly if with citizenship because you can't hold foreigners hostage in your own country.

3. In the case of the OP we don't know citizenship status of mother or child. But we do know the father cannot facilitate his own access right now, or for the foreseeable future. If he can't even take the child for the odd weekend he's hardly going to be able to offer full custody if the mother wants to go home? If the mother turns around and says "well I want to go home," and he can't take the child full time, which he clearly can't, then what?

Peregrinus

zeffabelli wrote: »

Right but people are talking in universals here with a big unknown variable at play, and that is the specificity of the non custodial parents relationship with the child.

2. Citizenship does count and it does not necessarily supersede the courts perceptions of best interest of the child, particularly if with citizenship because you can't hold foreigners hostage in your own country.

3. In the case of the OP we don't know citizenship status of mother or child. But we do know the father cannot facilitate his own access right now, or for the foreseeable future. If he can't even take the child for the odd weekend he's hardly going to be able to offer full custody if the mother wants to go home? If the mother turns around and says "well I want to go home," and he can't take the child full time, which he clearly can't, then what?

Well, I deny that a court making a decision about the custody of a child is "holding the child hostage". I think that's a bizarre way of looking at it. And if what you meant is that by awarding custody to one parent they are actually holding the other parent hostage, that's equally bizarre. But if you insist on seeing things that way, people are being held hostage regardless of their nationality. You don't have to be a Germany citizen to want to live in Germany, or to point out that under EU law you have a right to do so.

But I think it's all irrelevant here. In this case the custody application relates to the woman's two older children, who have an Irish father and seem to be Irish citizens themselves. She doesn't need any court order to allow her to take her youngest child to Germany to live with her and the child's German father. She could do that tomorrow.

Mr. Incognito

zeffabelli wrote: »

Right but people are talking in universals here with a big unknown variable at play, and that is the specificity of the non custodial parents relationship with the child.

2. Citizenship does count and it does not necessarily supersede the courts perceptions of best interest of the child, particularly if with citizenship because you can't hold foreigners hostage in your own country.

3. In the case of the OP we don't know citizenship status of mother or child. But we do know the father cannot facilitate his own access right now, or for the foreseeable future. If he can't even take the child for the odd weekend he's hardly going to be able to offer full custody if the mother wants to go home? If the mother turns around and says "well I want to go home," and he can't take the child full time, which he clearly can't, then what?

You were so close. So close.

Now we are talking about the non full time parents relationship?

Started with money. Debunked.
Went to citizenship. Debunked.
Suddenly petitioning the courts. Irrelevant.
Now jump to the other parents relationship with the child.

Sticking to your irrelevant citizen gun. Look the factors that count are in the link above. Read them if you want. I think an objective reader can elicit fact from opinion here.

CelticRambler

zeffabelli wrote: »

3. In the case of the OP we don't know citizenship status of mother or child. But we do know the father cannot facilitate his own access right now, or for the foreseeable future.

We don't know that. We know that the OP presented it as her justification for considering unlawfully removing their child from the jurisdiction; other than that, we have no other information about either the mother's or the father's circumstances.

Nicburberry

The child belongs with her mother regardless of circumstances. Judging by her dad's mentality I am also the only person that is responsible for her also. If he needs to go away for work or decides he doesn't want her this or that day then I have no say in it, however I have to ask his permission if I can't have her if I'm working etc, I have to organise a babysitter .

He sleeps easy knowing he doesn't have to rely on anyone to look after his daughter.
He can pick and choose depending on his schedule . He has no stress.

I am busting my ass renting privately and scrimping to play bills and a childminder faciliating him when all I want to do is go home and be happy woth people who want to support and people who care . My counsellor said the child spends 90% of her time with me , it is vital that I am happy. It is a lonely existence here and

The father earns three times more than me.

I am being judged harshly for wanting to move on with my life. I've really tried but I can't find hapiness here .

And no I don't use my kid as a weapon I have far too much respect for myself and my child to act out of spite.

I'm just looking for advice on what way to proceed . Will be speaking to a solicitor this week and see what I can do , maybe negotiating access for holidays etc might bend in my favour

goz83

Nicburberry wrote: »

The child belongs with her mother regardless of circumstances. Judging by her dad's mentality I am also the only person that is responsible for her also. If he needs to go away for work or decides he doesn't want her this or that day then I have no say in it, however I have to ask his permission if I can't have her if I'm working etc, I have to organise a babysitter .

That first line spells out your entire attitude here. The sense of entitlement is nauseating. With regards to him breaking agreements, you should note this and keep evidence and bring it to court.

Nicburberry wrote: »

He can pick and choose depending on his schedule . He has no stress.

Well, no, he really cant. Not if you do as suggested above. Of course there are circumstances where one parent is unable to stick to an arrangement, which is acceptable, in the short term. Ongoing breaches should be settled amicably, or settled in court.

Nicburberry wrote: »

I am busting my ass renting privately and scrimping to play bills and a childminder faciliating him when all I want to do is go home and be happy woth people who want to support and people who care . My counsellor said the child spends 90% of her time with me , it is vital that I am happy. It is a lonely existence here and The father earns three times more than me.

All you want is not what the judiciary gives a damn about. This is about the best interests of your daughter. The opinion of your counsellor won't hold any weight and how does your counsellor know how much time your daughter spends with you? I suspect this is information you "verbally" gave to your counsellor. It's great that your ex earns three times what you earn. It means he can contribute to make paying those bills a little easier. What if he was unemployed? Would you then complain that he only pays €15 per week in maintenance?

Nicburberry wrote: »

I am being judged harshly for wanting to move on with my life. I've really tried but I can't find hapiness here .

No. You are being told that moving your child outside of the jurisdiction is both illegal and stupid and that it is not in your childs best interest. How about leaving the child with her father if you want to move back to the UK? That wouldn't happen, I know. Unfortunately, you have to suck it up and consider your daughters needs before your own.

Nicburberry wrote: »

And no I don't use my kid as a weapon I have far too much respect for myself and my child to act out of spite.

You suggested taking the kid outside of the jurisdiction without legal consent and then dealing with the consequences after. I assure you that you would not like those consequences. At best, you would have more bills to pay after your daughter is rightfully removed from her abductor (you) and returned to her home country (Republic of Ireland). Carrying out this action would be using your child as a weapon.

Nicburberry wrote: »

I'm just looking for advice on what way to proceed . Will be speaking to a solicitor this week and see what I can do , maybe negotiating access for holidays etc might bend in my favour

Legal advice can't be sought here, but you have said you will be speaking to a solicitor, which is the most intelligent thing you've said so far.

I hope everything works out fine and that the idea of kidnapping your own child is removed from your head.