How long before children are considered resident in New York?(14 Posts)
Hi all. Some of you might remember me from my big crisis earlier this year when my husband was offered a job in NY and I was agonising over whether to go. Well, I didn't and he did, and now the marriage is on the skids. And I need to clarify something about all the good advice I received last time.
A split in the offing, but a little bit of me wants to consider trying a year out there, so that I have tried everything and can walk away knowing that. We could stash some money on the wage he is on, which we could really do with if we split and have to run two homes instead of one.
However, is it right that if I were to try a year out there, once we pass the 6-month point he can stop me returning to the UK with the kids, and lock me into living there permanently, or abandoning them? Is it really as short as 6 months before that happens?
If so I can't possibly take that risk, however much he assures me he would never do that, and however I really don't think he would. That means trying a year there, in order to have tried everything to make the marriage work, is not an option, and I can stop considering it.
Any advice gratefully received from anyone who knows this stuff for sure. Thanks in advance!
Sorry i have advice other than have you had a look on the Britishexpat website? Hope everything works out for you.
Funnily enough I posted on there earlier and the responses have been quite unhelpful! Not like on here. Maybe some more useful responses will show up on there over the next day or so.
I think I posted on your earlier thread - if I remember rightly, most people were questioning whether the offered money would be enough. If that's the one, then I assume he's had a pay rise or is getting cheap accommodation, since I really don't think you'd be able to stash money on $150k (?) in NY itself. (I've been living in NYC for the last 2.5 years).
Re the above, I couldn't say definitely, but unless he's a US citizen I don't see how that would be a possibility. You'd all be on visas, which will need to be renewed and they are for limited timescales. Our kids won't get residency until we have been here for 6 years at least (may be different on other visa types) and even then it would need both of us to fill in all the forms etc.
Sounds very unlikely that non US citizens would not be allowed to remove their kids after only 6 months and I've certainly never come across anyone claiming such.
Good luck and hope it works out. A year sounds like a good timescale to give it a go.
You need to research this by contacting a professional attorney - both in the US and UK - do not take the risk of taking advice from strangers on a internet forum.
While I agree with MrM above - i have come across some bone chilling stories of expats who have split and the US based spouse has blocked the other from taking the children.
Good Luck, I'm sorry you are going through this difficult time.
It's going to hinge on whether they'd be considered "habitually resident". There would be things for and against this.
I presume that the 6 year old will go to school? And the 1 year old might go to childcare? And of course you'd all live there.
I'd hazard a guess that you might be able to take advantage of the "intent of both parties" part by getting a signed, witnessed document from your husband that you can move the children between both countries at any time, and that you intend to return to the UK with your children in a year. But, you'd need to talk it over with a solicitor, and get a proper document drawn up and signed. You'd also want to stash a copy with the solicitor.
You really need a solicitor for this, though. For every person who found the move back easy you'll find someone who didn't. It'll entirely depend on circumstance.
Not to sound to negative but I missed your original post... But your husband went to live in the us and you wouldn't. It doesn't sound like a recipe for a marriage? On either side? I suspect whatever your reasons were are still there and all that this means is a year unsettling your kids,who may love the us but your marriage has no basis left, you don't want to move for longer than a set time and it sounds like a recipe for disaster! What happens if they want to stay with dad?
The main thing to remember is that in most US states, possession really is 9/10ths of the law. There really isn't a 'residency' per se, as in if they've been in 'X' for a certain period of time then that's where they must stay, it's more along the lines of 'what's best for the children'.
Absent a court order to the contrary, you could take the children back to the UK whenever you wanted to. He would need to go to court and obtain an court order to stop you but it would probably be granted, at least temporarily. You really should consult an attorney that understands NY custody laws. It is very common here that orders are written that one parent cannot remove a child from the state or country without express permission from the other parent.
I want to second the advice to get professional legal opinion face to face with a US lawyer who practices in NY family courts and one who is British and knows US /NY family law. There are matters of residence and jurisdiction that you would have to go into as well as custody and visitation. Divorce is governed by state and not federal law so specific NY expertise is necessary. You would also be in a position where you had to pay a NY lawyer or find someone to work pro bono for you. There is no such thing as institutional free legal aid.
Shell out whatever it takes to speak to reputable lawyers. It will be money well spent. Do not base your decision to go to NY or to stay in Britain on advice from anywhere on the net.
You might be able to contact a good NY family lawyer through the American embassy, or making inquiries through the NY Bar Association family law section. This law firm link may help.
Very much agree that decent legal consultation is in order.
One thing I found, when I lived in the States, is that there are about a zillion different definitions of residency, depending on the context: visa, tax, DMV, tuition fees, etc. I suspect residency relating to child custody is going to be similarly complicated. Definitely don't take anything for granted, although of course it sounds like you're really looking into it already.
Personally, I wouldn't want to move overseas to/with a difficult relationship, simply because being the trailing spouse and SAHP puts you in a potentially vulnerable and isolated position if things get unpleasant. I'm sure, again, you've considered this, but as a former trailing spouse I just wanted chuck that in.
I just want to second what HelloLa says. Once you get across the pond you are in a very vulnerable position, much more so than in your own country. You and the DCs are entirely dependent on DH. You may not be able to work, have no access to benefits, and have no family or friends to give you moral support. Everything, including all the social systems are different, don't think it's going to be like home, but somewhere else.
Not being the wage earner, you can quickly feel like you have no rights at all.
Look at the Hague convention...Basically as soon as you go there to live and set up home, register at school etc they can be considered resident for the purposes of moving children between countries. It is fine if you think you can trust your DH in case of a split. I don't think a letter would count for much if he changes his mind.
I know of a family in Oz where the mum wanted to come home but ended up staying because her DH didn't want to leave. They got divorced which caused her lots of angst because it meant her spousal visa was no longer valid. She ended up only being able to stay because her children were staying (but now has permanent residency and citizenship). She had to set up on her own again in a strange country with all the fear of not getting a visa.
I would even dream of taking a risk with your DCs' residency by going to NY for a year (or less). Think of the legal fees you will incur if you start some sort of cross-Atlantic divorce! They will quickly eat up any savings you will have made in a year.
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