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Do you know the law? I'm separating... I'm from NZ, can I take my baby with me?(44 Posts)
After 3 years of marriage I don't think I can take anymore.
My husband is London born and bred.
Our beautiful son is 5 months old. He was an amazingly pleasant surprise in an otherwise rocky relationship.
I am a kiwi and all my family is in NZ. I have no friends or family here and our marriage is in it's last throes.
My husband has dozens of friends and a domineering family.
I need to escape this marriage, yet have no one here to run to. I want to go home where I have family. I need my Mum.
Can I do this, or is it against the law? I have nowhere to go and feel so trapped. I don't want our son to never see his dad, but I can't stay in this marriage any longer.
Does anyone know if I can move home with my darling son? I've looked online and can't find any advice.
I don't know for sure, but I think you will need his permission.
I believe you can take the child out of the country for up to 28 days without permission - do you want to take a break in NZ or relocate permanently?
Here we go
Where both parents have parental responsibility, neither may remove a child from the jurisdiction of England and Wales without the consent of the other parent and any other person with parental responsibility.
Where one parent wishes to take a child out of the country, for example on holiday, the written permission of the other parent should be obtained and that written permission should be kept with the childs passport in the event of the immigration authorities questioning whether the child should be taken abroad.
If written permission of the other parent is unreasonably withheld, then an application may be made to the court.
If the child is taken out of the country without permission and not returned, steps can be taken to procure their return.
The importatn thing is not to panic and do something that later lands you in trouble.
From what I have come across during my own divorce is that the best thing is to apply for divorce here, complete it. And then apply to be allowed to go back to your country with your child.
According to the information I have, courts wouldn't force a single mum to stay in the country if the only network of support she may have is abroad.
Take it easy, and don't do anything you may regret. I know the only thing I wanted when my marriage finished was to run to my family with DS in tow (didn't have friends or family around here). One year later I can tell you that I have never felt so protected and supported here as in this last year, people I thought didn't care have been acting like real friends. I won't go back to my country now... actually, I have started to call this one "home"
I found this. If your husband decided to fight you there is still a very good chance you would be able to go.
How does the Court determine whether or not I could emigrate with my child?
The leading authority on relocation cases is Payne v. Payne  which involved the Court of Appeal reviewing the long line of authority going back more than 30 years to the case of Poel v. Poel .
In Payne the father was British and the mother was a New Zealand citizen. She applied for leave to remove their four-year-old daughter to New Zealand and the Court granted her application on the basis that the relocation would make her happier, which in turn would be in the childs best interests. The Court set out a guideline governing whether or not leave to remove is granted as follows:-
The welfare of the child is always paramount. The childs wishes will be taken into account where appropriate depending on age and maturity.
Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, looking at issues like accommodation, education, health care and jobs. If the application fails either of these tests, the application will be refused.
If however the application passes these tests then the father's opposition must be carefully assessed: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?
What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal? Where the mother cares for the child or proposes to care for the child within a new family, the impact of refusal on the new family and the stepfather or prospective stepfather must also be carefully evaluated.
sorry to hijack...but does the written permission thing apply if you are taking the kid on holiday without the other parent?
For a short holiday which doesn't affect the other parent's contact you don't need permission.
beansmum has summed it up very well (are you a family lawyer?)
In my experience, it is probably best to find out from him sooner rather than later what his views would be so that you will be prepared if you need to issue an application.
If you are forced to issue an application for leave to remove your daughter from the jurisdiction, this will not be a quick process. The first court hearing after you apply could be up to 6 to 8 weeks away and then there would be a report prepared by the CAFCASS officer (formerly called court welfare officer, an officer appointed by the court to attempt to assist the parties in reaching an agreement and if not, then they will interview both parties separately, sometimes with the child present - depending on the age)The CAFCASS officer will then file a report which can take up to 16 weeks depending upon what area you are in. You and your ex would need to file statements, there would be further hearings..... see what I mean, it is a lenghtly process and could be up to a year (possibly longer) from your first application. It is therefore best to broach the subject with him early on (obviously once you've told him you feel the marriage is over)so you can have an idea how things will proceed.
A French friend separated from her Australian husband, while living in Australia. She took her DD to Paris on a longish holiday (a month). She had verbal agreement from her H for this. Upon her return, she was arrested. Her H had called the police, saying she had kidnapped their daughter
She has now lost custody, lives in Paris, and depends on the goodwill of her ex-H to see her daughter, once every two months or so.
Be careful, in other words. Get written agreement from your husband if you take DS to NZ (write him an e-mail, and keep his response, as proof that he approved of this holiday). File for divorce and don't take DS out of UK until you get custody. Stay firmly within the law.
I would stick within the law. Just think how you'd feel if your H took your lo to the other side of the world?
I'm not a lawyer btw (starting a law degree in feb though!), I just copied that stuff from here. It's probably best to talk to your husband and then talk to a solicitor. It might take a bit of time to get permission, but it's better than going to NZ without it and being forced to come back.
Wow - amazing advice and thanks for the links too.
You have all really helped me out. I literally had no idea what the law said.
Thanks everyone. xx
Are there reasons to believe your emigration would be challenged and that it could develop into a confrontation?
Could you visit NZ first, on a visit basis, with his (written) permission, and come back to the UK so DH knows that you will return?
I really would try and come to an amicable arrangement and not involve the family courts if at all possible.
Also, not sure about NZ, but would it be possible for you to get DS a NZ passport? I know that a US passport requires both parents to give consent for the passport, which may raise alarm bells, but maybe not?
You'll be able to get a NZ passport, my ds has one and it didn't need permission from his father.
Peanut, so sorry you are feeling this way. I am a kiwi too, living here but DH is kiwi too. But if I wanted to leave DH would probably want to stay here as he has a long-term career in the forces.
All excellent advice here, by the way. You can't just take DS and go as you must know. You will have to apply to the courts etc.
Have you seen you family since DS was born? Having a baby can be a very alienating experience and can take time to make new friends and re-create your identity as a mummy and wife. This is even harder when you are doing it in a country which is not your own without the support of your immediate family. You talk of escape, are you possibly suffering from PND? Have you felt this way since the baby was born? Is DH nor supportive to you? Would you be able to both commit to trying to make the marriage work eg counselling or Relate etc?
I know of a couple (DW Aussie, DH from UK) their marriage not going terribly well. She took the children back to Australia for a holiday and he was to met them out there for the end of the holiday, but when he got out there she said she wasn't actually coming back. He flew back to the UK and reported her to the police and she was made to come back with the children and had to go through the courts etc. She was eventually allowed to take them back and settle in Oz but must bring them back for seven weeks per year to see their dad. So all in all not an unworkable arrangement.
I feel for you. (((hugs)))
Wrt written permission ; I have to get a letter from my dh to say I have his permission to take my dds abroad. We are not separated but live in Canada, if I bring dds home for a visit without him, they always ask for the letter.
It did make me wonder though, how do they know the letter was written by him? It would be so easy to type it out yourself and forge signiture. BUT that would get you in really big trouble if you got found out. I wouldn't do it in case it meant the courts went against you later.
I'm worried now! I'm moving to NZ next year with ds. I wont have permission from his dad because I don't know where he is and have had no contact with him for over 4 yrs. I hope I don't have trouble at the airport!
you shouldn't have any problems beansmum, as long as DS has your surname, there should be no reason why anyone should question you.
I'm divorced from my eldest two DC's dad and have taken them abroad loads of times, to the States (around 5 times) to the Canaries a few times and the only time I had to get a lette was when I moved to Saudi Arabia and that was just to get the visa sorted because by that time I'd remarried and they had a different surname to me.
At the end of the day, if you don't know where DS's son is, how can you get permission? Like mentioned above, if you needed a letter, anyone could write it (although for Saudi visa I had to get ex to go to a Solicitors and produce ID and hand in his letter to the Solicitor who had to do a covering letter to confirm it was him) That is just a lot of Saudi red tape though I think so hopefully you won't have any problems.
I'm going to see a solicitor about something else next week, so I'll ask about it then. Maybe it would be a good idea to get a letter from my solicitor saying that ds's dad doesn't have parental responsibility and his permission isn't required.
I think that's a good idea beansmum. Maybe it's just Canada that are so fussy about this.
I know someone who was asked at the airport to show a letter of permission - she said "well if you can find him, ask him, but good luck with that"
Hi Peanut... I have another kiwi friend going through exactly the same dilemma atm. I also understand how it feels to be a million miles away from family with a newborn! I hope that you get good advice and are able to reach an agreement with your dh that suits you both.
actually, I have just realised that my dh's three girls all have different surnames (first from previous relationship, our dd1 has my maiden name as we were unmarried; and dd2 has our married name). I travel on my passport in maiden name. Neither of us has had any problems travelling with any of the children.
A few issues here.
If your child has your surname it's unlikely you'd be questioned but your dh could make trouble. You are not meant to take a child abroad without the other parent's consent where you have joint responsibility. It's best not to go against the law, particularly if your marriage is in trouble - you could be storing up problems.
Any chance of a trip home to see your folks - what would he say - would he agree or would his 'overbearing' family block it. If you think there'd be trouble don't broach the subject with him as it might start something off you're not prepared for. Any chance of your family coming here?
I'd get legal advice beforehand, then decide what you want to do then talk to your dh.
You're feeling low and if it's really bad and if you feel powerless against your dh family it's best to first get advice and then make your decision and then tell him.
Hope it goes well for you.
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