Expat mothers lose child custody battles in overseas courts

Published:  22 Oct at 6 PM
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A disturbing picture is emerging concerning the chances of an expat mother gaining custody of her children through foreign courts after a relationship breakdown.

The desperate situation of expat mothers whose marriages had failed was brought into the public domain recently by the Guardian when a Welsh mother abducted her own children rather than hand them over to her Spanish husband to live in Spain on the order of a Spanish judge. Jennifer Jones and her four children were found 24 hours later and Jennifer and her new partner were arrested, with her children now in care waiting to be sent back to their father.

British consular assistance in such cases has soared over the last year, but there is little that can be done as children and their parents no longer live under British legal jurisdiction. In many countries, child custody cases are heard in small local family courts staffed with judges who may well lack expertise and understanding, preferring to use default positions based on old-fashioned values prejudicial to women.

According to International Family Lawyer of the year award-winner Anne-Marie Hutchinson, it’s the mothers who almost always come off worst in foreign custody battles when a marriage splits up. Without their husbands’ financial support, they can’t stay abroad and can’t get leave to bring their children home.

Former partners successfully accuse them in court of abandoning their children, she said, when the truth is that they’re penniless and can’t persuade the court they can look after their children. According to Alison Shalaby of the charity Reunite, an increasing number of such cases are coming to light in countries as diverse as Hong Kong, New Zealand and Australia as well as the Mediterranean countries.

Shalaby states that settling in a foreign country automatically changes children’s habitual country of residence, meaning custody cases must be tried in local courts. She adds that choosing to live overseas involves submitting to the chosen country’s laws, however unfair.
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