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How can I get permission to remove children from the courts jurisdiction to go to NZ

(28 Posts)
kiwiabroad Wed 15-May-13 00:55:57

I am a Kiwi in the throws of divorcing my English husband. Our children are 9 and 8 and he has 2 children from his first marriage of 13 and 11. My two tinkers have dual citizenship as British and New Zealand citizens. They have spent about 10% of their lives in NZ due to regular yearly and twice yearly holidays. I now wish to emigrate to New Zealand with the children but my DH is refusing to give permission. The children love NZ and the lifestyle however have obvious concerns about leaving their father and their half siblings.

Their half siblings come and go as they please and in fact one of them has only been here 7 nights this year. And sometimes either one or both doesnt even come on their scheduled contact times often leaving my two feeling let down. Anyway, my parents have offered me a job in the family business, the local school has places for the children and is a very high achieving school in a reasonably affluent rural area. I also have the opportunity to build a house on my parents land as they have offered to subdivide a few acres off their farm. I have come up with a number of different contact arrangements for my husband to keep in touch with the children but none of them seem to be agreeable to him. Yet he is not prepared to bring anything to the table.

The children love New Zealand and often ask when we can move there although do not relish the thought of moving there without their father. We have attempted mediation to reach an agreement which has failed and I'm not sure what to do next. It was always our families intention to move to New Zealand when my stepson had finished secondary school however now that our marriage has failed, I want to go sooner.

Can anyone give me an indication of the chances of me winning a court battle? I am familiar with Payne vs Payne but it seems the courts are not using that case so much as a precedent anymore. I have been battling with depression through this break up however my DH still refuses to let me go home with the children. Can anyone recommend a good lawyer in the north of England or give me some direction in completing the C100 form?

Collaborate Wed 15-May-13 08:09:52

Where do you live?

showerhead Wed 15-May-13 10:06:20

you'll have a very hard time proving this is best for the children . Despite what you say about contact arrangements there will inevitably be a dramatic loss of direct contact time and quality time with their father as you are moving thousands of miles away. I would say your chances are very poor indeed and if I were the father I'd be devastated.

3xcookedchips Wed 15-May-13 10:45:54

If you're intent on returning to NZ and the kids have anxieties about being apart from their father, why don't you go ahead and the kids stay with their father here? You get what you want and the kids still get to visit you in NZ...just a thought.

kiwiabroad Wed 15-May-13 13:29:17

Middlesbrough

kiwiabroad Wed 15-May-13 13:31:52

Collaboration - I live in Middlesbrough.

Cookedchips - their father doesnt want the children fulltime

Showerhead - the father is welcome to come as it was always our plan even before kids, to move as a family to NZ. He doesnt want to though.

kiwiabroad Wed 15-May-13 13:34:52

Also as a plan B - does anyone know what my rights are to keep the house we live in for a period of time if I dont get what I want from a C100 application. I am their primary carer and need hubby to move out.(we still live under the same roof and its torture).

showerhead Wed 15-May-13 13:37:28

he wanted to go as part of an intact family. That's not the case now .

kiwiabroad Wed 15-May-13 14:25:36

Also true - and also the same reason I stayed in the uk - as an intact family but that's also not the case. There are loads of examples like that which are scenarios we both share.

3xcookedchips Wed 15-May-13 15:34:21

Without speaking to him we don't really know what he wants so therefore its unreliable to rely solely on your version - and given the stage you're at all we're ever talking are hypotheticals. There are many outcomes from this sort of situation and is very difficult to predict outcomes. However, I see you're planning your strategy now by playing the depression card. Cant imagine what the poor father is going through especially as you want him out of the house and therefore intend for his children to apart from him. His world and the childrens is about to be turned upside down.

Can we assume therefore if he was prepared to the full time carer of your children you would not find that acceptable

Hi kiwi I really feel for you as I would be in the same position if DH and I split. I'm a kiwi (and I wish I'd known you when we lived in Hartlepool!), and he is English.

However, as hard as it is, I think you will be fighting a losing battle.

What kind of arrangements did you offer for contact? Are you both able to pay for 6monthly trips, you one of them, him the other, to visit the children? Perhaps reassess after a year, as to how involved he his, how often he sees them. Is he a good, involved, loving father? They will have enough to deal with regarding the divorce, let alone moving to a new country.

I do understand that your family support will be invaluable for you and you will have a great life over there, I'd suggest slowing down your plans though. Maybe your children's wishes will be taken into account when they are a little older as well.

DH also has a child in the UK (we live abroad for work), that he sees every 6months in bad years, and every 3mths in good years, and weekly phone calls. It's no relationship to want for your children, from what I can see, he is no father figure, and has zero influence in her life.

SanityClause Wed 15-May-13 15:57:54

I think it's very unlikely that the courts will allow the children to go to New Zealand if your DH doesn't agree to it.

They like being in NZ, but I'm guessing they've only been there in holiday time, and haven't lived a normal day to day life there, with school and so on. NZ is not for everyone - if it was Kiwis would stay there, not go to Australia (if not very adventurous) or Europe (if more so).

I really can't see that the "quality of life" can make up for not seeing their father very often, leaving their friends, and their UK family.

Xenia Wed 15-May-13 17:10:13

I suppose turn it around and if their father said he was going to take them to live in say Alaska and you could see them once a year would you like that? Would you be upset? of course you would so why should you inflict that on him?

Surely you could go to NZ without the children and just visit them in the UK in holidays?

I have worked with a lot of people from NZ. Jobs out there are even worse than in Middles borough. Many of the bright IT and other professionals have to leave NZ which is basically just sheep, to get on in life.

wannaBe Wed 15-May-13 17:25:50

you chose to have children in a country where their father was a resident. You have no right IMO to now decide to obliterate the relationship between those children and their father. This is not about you, or in fact your dh, it's about your children's right to have an equal relationship with both parents, and that doesn't involve you being allowed to uproot them halfway around the world.

It is highly unlikely you will be granted permission to remove the children to NZ and rightly so. If you want to move to NZ then move to NZ and come back to visit the kids every six months. Don't like that? no thought not, so why should your ex be subjected to that?

WRT you staying in the family home, there are lots of cdifferent factors which influence this, however the courts are less inclined too issue mesher orders now because they are generally not enforceable. You would be better to sell up and divide the assets. You equally can't make your xh move out...

showerhead Wed 15-May-13 17:45:42

kiwiabroad it may seem unfair to you but the fact that you were only happy to stay as part of an intact family is not the same thing. You have lived here for many years, you should have friends , work etc . Your children have been brought up here. Lots of people make plans before they split up, retirement plans, plans for more children (i'd love to have had another but divorce took that away), plans on where to move to etc. Things change by necessity when a couple split up and you both have to deal and come to terms with that. It takes time and is a hard process to go through.

I'd say you stand next to no chance of getting this so save your money for frequent trips back to NZ and concentrate on learning to live with the fact that your life isn't going to be the way you had planned. Read up on the change curve too, it will help you understand your emotions.

Booyhoo Wed 15-May-13 17:47:48

I have no idea about your chances legally.

However i would strongly recommend that you get through the divorce, decide what is happening with the house and assets ( this doesnt include the dcs btw- they aren't property wink) let things calm down, deal with the whole emotionall fall out for the dcs and yourself. ( going through depression isnt the best time to be making such life altering decisions for other people) and once you feel well again, the dcs have gotten over everything, their father has had time/ chance to be a father on a separated basis then reasses an see if taking them away fron him is really in their best interests. If NZ is the best thing for them then it will still be the bet thing for them in 2/3/4 years. This sounds very much like a knee jerk reaction and you just wanting to get away from the horribleness that is divorce.

macreturnofthe Wed 15-May-13 17:52:50

i would suggest staying in uk for a year or so, properly separate and then look at relocating to nz when the kids are happy - it may all be a bit much at the moment, especially if you are all still under one roof.

Lonecatwithkitten Wed 15-May-13 19:03:41

I think everyone else has said everything there is to say about relocating.
However, when you are still sharing a house it is terribly difficult and depression is very likely. As you don't appear to have yet seen a solicitor I would suggest doing that and get the divorce moving forward so your finances and accommodation are sorted.
When I was still sharing a house with ExH I felt that I was depressed (I have had depression before) and actually once we were no longer living under the same roof I felt a lot better. Now a year on the world is a very different place.

babybarrister Wed 15-May-13 21:48:30

I don't necessarily agree that you won't get permission but it will be a long hard fight and will take about a year ...

you may want to consider carefully whether indeed now is the time to make the application. be warned that if there is a shared care arrangement that it is even more difficult - see the case of K v K

look for someone on who is accredited by Resolution in relation to International family law or child abduction

[[http://www.resolution.org.uk/memberSearch.asp?page_id=45&search=details&sMethod=byTown&sValue=Newcastle&inpSearchCondition=m[d]m_membership_type%20[e]%20'Full'&inpSubject=6|13|&page=1&m_id=08573]]

kittycat68 Thu 16-May-13 09:12:08

of course you could always state if he wont allow you to take the children to NZ. you are going anyway and he would have to have the children full time, you the holidays. BUT dont threaten this unless you are happy to go through with it!!!

Spero Thu 16-May-13 09:19:12

There has been a lot of concern and criticism about Payne as many see it being used to allow women to leave if staying would make them unhappy. The basic test, as ever, is what is in the best interests of the child. There are so many variables it is very difficult to advise on prospects of success but if you do apply to court you will need to have very clear evidence about what is available to you in NZ in terms of housing, jobs, schools, emotional support etc and you will need a clear plan for contact and how you will mitigate the serious impact of your proposed move.

I have succeeded in getting permission to relocate when a mother was very isolated in the UK and the father wasn't having much contact. But my last case, permission was refused as parents had a roughly shared care arrangement and child had other half siblings in UK. Mother was permitted contact during almost all of school holidays instead.

Also, I agree with baby barrister, if you go down this route, it won't be quick. Sx months minimum, longer likely.

kiwiabroad Thu 16-May-13 11:05:06

I know it's a tricky one and I have thought about everything mentioned. I also appreciate the 'fathers' perspective which has been shared here and I'm not oblivious to it either. To those that have been constructive, thank you for your advice.

familysol Wed 22-May-13 07:16:34

Kiwi before you make any decisions get good legal advice from a specialist family solicitor. They will give you an idea of your chances of success, timescales and costs. With this knowledge you can then properly consider your position
Good luck

mumwinner Sat 25-May-13 17:41:16

Dear Kiwiabroad
I was granted the leave to remove in January 2013.Now my children and I are living the happily ever after story.
It depends how much money your husband is prepared to waste in the courts and how much hussle he want to give you, the process could take a year or less if you have all the right documents and a good barrister.
If has been DV and you reported it/ have some proof that will make things easier.
There are things you need to have in place to get the leave to remove granted but the main one is to make sure your children want to move and you have a clear plan for contact between them and their father besides a well thought plan for the children education,accommodation in the country you are going to be.
If your ex is stupid enough to join one of dads groups for equality in parenting, I am sure he will make many mistakes and you will win as most of those groups give very bad advise.

im22 Sun 26-May-13 21:23:27

mumwinner Your post is disgusting. This is a legal maters board, not a cheering on/you go girl/encouraging/how to fcuk over your ex board.

"It depends how much money your husband is prepared to waste in the courts and how much hussle he want to give you," does it occur to you that he might love his children? That someone who did so might not consider this a waste of money?

"If has been DV and you reported it/ have some proof that will make things easier," where has DV been mentioned anywhere in this thread? It's possible your post has angered me so much that I'm not reading this correctly, but you seem to be suggesting that the OP should report her ex for DV so that life is easier for herself, whether true or not. (I apologise to you OP if this is the case, but since you haven't mentioned DV anywhere I will continue on the assumption that it isn't/is none of our business)

"To get the leave to remove granted but the main one is to make sure your children want to move," this is alienation, if they want to go that's fine, but encouraging the children to want what you want so that you get your way in court against an ex is a horrible thing to do.

Best of luck through this difficult time OP

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