Leaving the country with his daughter

Diamond Doll

I've an acquaintance who's in a very difficult situation where she had two kids in Ireland with her ex-husband, her fiance had two kids in Germany with his ex-girlfriend, and they've recently had a baby together (with her living in Ireland, him back in Germany.) It's a mess! She is German herself, and very keen to move back there. She's been in and out of the Irish courts for a year, since before the baby was born, but keeps being turned down. Her fiance doesn't want to move to Ireland as he'd be leaving his older children behind, but of course it means they rarely get time together as a family, which is especially difficult now that the new baby has arrived.

While I really feel for her, the older childrens' father does seem to have a genuine interest in his kids' upbringing, and it would seem completely unfair to move them away from him. There's no easy solution.

I do know another single mother who applied to move to Italy, and it was granted by the court, on the condition that she brings the kids back to Ireland for access three times a year (I think it's a week at Christmas, two weeks at Easter, three weeks during the summer.) So it does happen, sometimes, but from what I've heard it's quite unusual for judges to allow it unless there's very concrete evidence that it's in the child's best interests ... and even then, it'll just depend on the judge.

My own personal feeling is that it's really unfair on fathers in that situation. Say in the above case, three times a year really doesn't seem enough to have a proper parent-child relationship, no matter how much Skyping you do! It really sucks for the parent who wants to move, but I guess potentially being tied to a country is one of the sacrifices you make when having a child.

zeffabelli

Diamond Doll wrote: »

I've an acquaintance who's in a very difficult situation where she had two kids in Ireland with her ex-husband, her fiance had two kids in Germany with his ex-girlfriend, and they've recently had a baby together (with her living in Ireland, him back in Germany.) It's a mess! She is German herself, and very keen to move back there. She's been in and out of the Irish courts for a year, since before the baby was born, but keeps being turned down. Her fiance doesn't want to move to Ireland as he'd be leaving his older children behind, but of course it means they rarely get time together as a family, which is especially difficult now that the new baby has arrived.

While I really feel for her, the older childrens' father does seem to have a genuine interest in his kids' upbringing, and it would seem completely unfair to move them away from him. There's no easy solution.

I do know another single mother who applied to move to Italy, and it was granted by the court, on the condition that she brings the kids back to Ireland for access three times a year (I think it's a week at Christmas, two weeks at Easter, three weeks during the summer.) So it does happen, sometimes, but from what I've heard it's quite unusual for judges to allow it unless there's very concrete evidence that it's in the child's best interests ... and even then, it'll just depend on the judge.

My own personal feeling is that it's really unfair on fathers in that situation. Say in the above case, three times a year really doesn't seem enough to have a proper parent-child relationship, no matter how much Skyping you do! It really sucks for the parent who wants to move, but I guess potentially being tied to a country is one of the sacrifices you make when having a child.

If she can prove greater financial stability for her and the child, as well as a willingness to facilitate access then a judge will find that hard to say no to, as in a job prospect.

The father in this case, cannot even provide access as his has given his daughters space away to someone else. This wont look good.

CelticRambler

zeffabelli wrote: »

The father in this case, cannot even provide access as his has given his daughters space away to someone else. This wont look good.

The father's solicitor will inevitably present a different version of this situation to the way it's described here.

zeffabelli wrote: »

If she can prove greater financial stability for her and the child, as well as a willingness to facilitate access then a judge will find that hard to say no to, as in a job prospect.

Sure, that would work perfectly in relation to the new (German) baby, and if the mother is prepared to cede custody of her Irish children to the father, no problem. But financial stability isn't enough on its own to justify breaking the extended family connections of settled older children just so the mother can live a new life with someone else.

Kevin3

Graham wrote: »

If there's no court order mandating that the child remains in the jurisdiction what would make leaving the jurisdiction illegal?

Added: genuinely curious, I'm not suggesting you're wrong.

There's no need to consider the Hague Convention. This is a straight forward criminal offence which the gardaí deal with:

Non-Fatal Offences Against the Person Act, 1997
16.—(1) A person to whom this section applies shall be guilty of an offence, who takes, sends or keeps a child under the age of 16 years out of the State or causes a child under that age to be so taken, sent or kept—
(a) in defiance of a court order, or
(b) without the consent of each person who is a parent, or guardian or person to whom custody of the child has been granted by a court unless the consent of a court was obtained.
(2) This section applies to a parent, guardian or a person to whom custody of the child has been granted by a court but does not apply to a parent who is not a guardian of the child.
(3) It shall be a defence to a charge under this section that the defendant—
(a) has been unable to communicate with the persons referred to in subsection (1) (b) but believes they would consent if they were aware of the relevant circumstances; or
(b) did not intend to deprive others having rights of guardianship or custody in relation to the child of those rights.
(4) A person guilty of an offence under this section shall be liable—
(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.
(5) Any proceedings under this section shall not be instituted except by or with the consent of the Director of Public Prosecutions.

Source: http://www.irishstatutebook.ie/eli/1997/act/26/section/16/enacted/en/html#sec16

A very serious offence at that which can attract a 7 year prison sentence not to mention where necessary, the resources of the state in extraditing an offender.

Graham

Kevin3 wrote: »

There's no need to consider the Hague Convention. This is a straight forward criminal offence which the gardaí deal with:



Source: http://www.irishstatutebook.ie/eli/1997/act/26/section/16/enacted/en/html#sec16

A very serious offence at that which can attract a 7 year prison sentence not to mention where necessary, the resources of the state in extraditing an offender.

Without knowing the specifics it appears there are circumstances where the action considered by the OP would not be an offence.

Kevin3

Graham wrote: »

Without knowing the specifics it appears there are circumstances where the action considered by the OP would not be an offence.

What circumstances? The legislation clearly makes it an offence to take a child out of the jurisdiction without consent from both parents. The other parent clearly doesn't want the child leaving the jurisdiction considering the solicitors letter.

zeffabelli

CelticRambler wrote: »

The father's solicitor will inevitably present a different version of this situation to the way it's described here.



Sure, that would work perfectly in relation to the new (German) baby, and if the mother is prepared to cede custody of her Irish children to the father, no problem. But financial stability isn't enough on its own to justify breaking the extended family connections of settled older children just so the mother can live a new life with someone else.

In reality it often is. IF the custodian has a chance to provide better for the child with a better job and better money AND can faciliate access, vs. example a life on social welfare, then yes, a judge will find it very hard to say no to that.

Mr. Incognito

zeffabelli wrote: »

In reality it often is. IF the custodian has a chance to provide better for the child with a better job and better money AND can faciliate access, vs. example a life on social welfare, then yes, a judge will find it very hard to say no to that.

I would disagree with you there.

The default of any judge is the welfare of the child.

They do not take the parents circumstances into account when deciding whether someone should be in the same geographical area as the child.

Tasden

Mr. Incognito wrote: »

I would disagree with you there.

The default of any judge is the welfare of the child.

They do not take the parents circumstances into account when deciding whether someone should be in the same geographical area as the child.

Also, they will not look too kindly on someone who has taken the child out of the country prior to getting permission/consent from the other parent, regardless of whether it is a better situation or not.

zeffabelli

Mr. Incognito wrote: »

I would disagree with you there.

The default of any judge is the welfare of the child.

They do not take the parents circumstances into account when deciding whether someone should be in the same geographical area as the child.

Money is very much taken into consideration in relation to the welfare of the child.

And in also to consider, it will also depend on the citizenship of the child.

CelticRambler

So is family (and friends/social network) and older children also get a say in whether they stay or go. In some cases, it's better that the custodial arrangements are reversed, and if a determined, well-intentioned father presents that option to the judge, a mother seeming to base her case largely on her own financial interest can find her position greatly weakened.

zeffabelli

CelticRambler wrote: »

So is family (and friends/social network) and older children also get a say in whether they stay or go. In some cases, it's better that the custodial arrangements are reversed, and if a determined, well-intentioned father presents that option to the judge, a mother seeming to base her case largely on her own financial interest can find her position greatly weakened.

Not really, unless he can pay into her pension, alimony where there is divorce, and compensate for the financial losses by remaining in the country.

Seriously money and provision are are very much linked to the welfare of the child. You honestly think judges think poverty is good for children?

CelticRambler

As we're constantly reminded, men still have greater earning power than women, so I really don't know where you're going with this idea. But I can tell you from first hand experience that money is well down the Family Court judges' list of priorities when deciding these kinds of inherently complicated cross-border cases.

zeffabelli

CelticRambler wrote: »

As we're constantly reminded, men still have greater earning power than women, so I really don't know where you're going with this idea. But I can tell you from first hand experience that money is well down the Family Court judges' list of priorities when deciding these kinds of inherently complicated cross-border cases.

And you think you are the only one with first hand experience?

Mr. Incognito

zeffabelli wrote: »

Money is very much taken into consideration in relation to the welfare of the child.

And in also to consider, it will also depend on the citizenship of the child.

Not from my experience in the courts.

A child that is loved and well cared for will trump money every single time. Once a parent has the capacity to provide a home and a loving and supportive environment the courts dont factor money in after that.

Heres the explanatory memorandum of the 2015 Act. It sets out the considerations in black and white. They refer to capacity of the parents. Financial means are not mentioned anywhere.

http://www.oireachtas.ie/documents/bills28/bills/2015/1415/b1415d-memonew.pdf

If one parent is a millionaire and one is working minimum wage the court will seek to give them both equal access if they are both willing and available and responsible parents. Money is usually a non issue and never substitutes love.

Citizenship is a non issue. Always.

zeffabelli

Mr. Incognito wrote: »

Not from my experience in the courts.

A child that is loved and well cared for will trump money every single time. Once a parent has the capacity to provide a home and a loving and supportive environment the courts dont factor money in after that.

Heres the explanatory memorandum of the 2015 Act. It sets out the considerations in black and white. They refer to capacity of the parents. Financial means are not mentioned anywhere.

http://www.oireachtas.ie/documents/bills28/bills/2015/1415/b1415d-memonew.pdf

If one parent is a millionaire and one is working minimum wage the court will seek to give them both equal access if they are both willing and available and responsible parents. Money is usually a non issue and never substitutes love.

Citizenship is a non issue. Always.

Can you explain how citizenship is a non issue? How can the Irish state force people who are not Irish citizens to reside here?

Of course its an issue...

Mr. Incognito

zeffabelli wrote: »

Can you explain how citizenship is a non issue? How can the Irish state force people who are not Irish citizens to reside here?

Of course its an issue...

I believed we were discussing citizenship of the child which is always a non issue.

You are talking about citizenship of the parents?

Well to explain again, the courts look at the child first and their well being. They can only deal with people in this jurisdiction. They dont make orders against non residents. Citizenship and residence are two totally seperate issues. If you have a child here you have decided to move here. The State didnt force you here. If you want to leave and take your kid the Court can absolutely veto that want if the other parent refuses to give consent and can be in the childs life.

zeffabelli

Mr. Incognito wrote: »

I believed we were discussing citizenship of the child which is always a non issue.

You are talking about citizenship of the parents?

Well to explain again, the courts look at the child first and their well being. They can only deal with people in this jurisdiction. They dont make orders against non residents. Citizenship and residence are two totally seperate issues. If you have a child here you have decided to move here. The State didnt force you here. If you want to leave and take your kid the Court can absolutely veto that want if the other parent refuses to give consent and can be in the childs life.

I'm talking about both.

Citizenship and residency are not the same thing. There are plenty of non citizen children here, and given that in both the examples in this thread, the OP and the case of the German child, we don't know the citizenship of either.

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.

Mr. Incognito

zeffabelli wrote: »

I'm talking about both.

Citizenship and residency are not the same thing. There are plenty of non citizen children here, and given that in both the examples in this thread, the OP and the case of the German child, we don't know the citizenship of either.

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.

Yes they can and through the Hague convention they can compell the return of the child to the jurisdiction. I am glad we agree citizenship and residence are not the same thing. Residence is relevant as i pointed out.

I think you are confusing your opinion with the law. Citizenship is almost always irrelevant. I cant think of any example where it would be. Once you are resident Irish law applies.

zeffabelli

Mr. Incognito wrote: »

Yes they can and through the Hague convention they can compell the return of the child to the jurisdiction. I am glad we agree citizenship and residence are not the same thing. Residence is relevant as i pointed out.

I think you are confusing your opinion with the law. Citizenship is almost always irrelevant. I cant think of any example where it would be. Once you are resident Irish law applies.

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..

But I am not talking about abduction, I am talking about in the petitioning of a court for being able to relocate... which has nothing to do with the Hague convention.

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