International Child Visitation Issue - Australia / New York

[aldrous]

I was married in 2000 to a Malaysian citizen here in New York, we lived here for 6 years and our son was born in 2002 as a United States citizen. In 2006 my then wife wanted to move to Australia as she was not happy here. I was very reluctant but wanted her happy. We moved so she could be closer to relatives in Australia and her parents in Malaysia. In 2008 she began cheating on me and I found out in 2009 she wanted to leave me for him. I was devastated to say the least. We legally separated in April and I was allowed to take our son back to the states for a month's visit with his family. We shared visitation, week be week. About the same time, my sister was diagnosed with terminal brain cancer. I found this out just days after returning to Australia. I told my ex-wife that I needed to move back to the states to be with her. I moved back in August 2009. I could not take my son with me. I try to call every weekend to speak to my son but all she does is place the phone on speaker and never encourages him to speak or let him visit me back in New York. She will only allow me to visit in Australia. I only get a week off for vacation. I told her that our son has a right to see his family in the states. Not only his dad, his grandmother, aunts, uncles, cousins. She has denied this. I am currently in mediation with Australia which is very, very slow. My biggest concern is, recently I been told she has distanced herself with even her family. Our son does not get to see his Godmother who lives close by in Australia. I know filing for child custody will be hard for me as I keep hearing that the law tends to side with the mother. I know she cares for him well and provides but I believe she is denying our son his rights to a meaningful relationship with his family, not only his Australian family, but his American family and his own father.

She filed for child support over a month ago and never told me about it and she even gave CSA the wrong address and number to contact me on. I was finally contacted a year later and ordered to pay and pay for arrears that I never knew accumulated. I told her and kept asking her if she applied to CSA so I can begin paying for child maintenance but she never told me she did. I feel she has attempted to discredit me and make me out to be a incompetent dad. Now I have back child support of over 6,000 dollars which will take me most of my life to pay off, not to mention how she has kept him from his own dad.

What can I do to help my son? What can I do about any of this? I told her I would come get our son and fly back with him so he can stay with me and be with his family for a time allowed. But she has said she does not trust me and will not allow it. She says I left her with a debt when in truth, she left me with a debt. Before she sprung her adultery to me, we were moments away from closing a deal to build our home on land we bought in Australia. This left me with a huge debt for the land with only my salary. She had her salary and her new man that she began to live with. Since the land debt has been absolved.

What are my options? We are still currently separated and my solicitor in Australia says I should file divorce until the rights of the child are resolved. Can I file divorce here in New York since we married here? Can I include child custody in the divorce or visitation rights? My son is 9 years old and I feel his rights are being violated. Currently she and my son are permanent residents of Australia, she is still a Malaysian citizen and he a U.S. citizen. She is now, no longer with the man she cheated on me with. She seems even more bitter because she has no one, she expected me to stay and be her net to fall in.

 

[Proserpina]

You can file for divorce, yes - but custody cannot be decided in New York since the US does not have jurisdiction.

I'm sorry, but that will be determined in Australia.

Your wife is legally correct in one aspect - your son doesn't have any inherent right to see family in the US.

 

[aldrous]

Why do you say he doesn't have an inherent right to see family here?

 

[Proserpina]

He's 9 years old - his rights are few and far between and generally refer to those such as the right to be fed, clothed, housed, not abused etc. If he's under Mom's custody, he has as many rights as she allows him to have. Even under Australian law, the only right he has in terms of who he sees is the right to have access to both parents where possible. Extended family members don't count, legally.

I do realize this isn't what you want to read, Dad. And it's not so much that the law favors one gender over the other; rather the law recognizes a primary caregiver. So if one parent has been a stay-at-home parent while the other works, the courts will generally favor the status quo and leave things as they are.

Make sense?

 

[army judge]

He's 9 years old - his rights are few and far between and generally refer to those such as the right to be fed, clothed, housed, not abused etc. If he's under Mom's custody, he has as many rights as she allows him to have. Even under Australian law, the only right he has in terms of who he sees is the right to have access to both parents where possible. Extended family members don't count, legally.

I do realize this isn't what you want to read, Dad. And it's not so much that the law favors one gender over the other; rather the law recognizes a primary caregiver. So if one parent has been a stay-at-home parent while the other works, the courts will generally favor the status quo and leave things as they are.

Make sense?

OP, Proserpina is spot on with her advice and counsel.

The other issue is that she out foxed you in this.

She's right where she wanted to be and used you to get there.

Australian immigration policy is very different from US policy.

The Aussies are restrictive as to who or what they allow into their country.

She used your US citizenship to wrangle her way into OZ.

I suggest you speak to a very, very good family rights attorney.

It might not help, but at least you'll learn the specific rights applicable to your situation.

 

[aldrous]

You are so right army judge, she did use me well.

Proserpina mentioned my son's right to both parents. Does that mean the simple phone call a week is it? Does he not have a right to a meaningful relationship with me? I know primary custody is out of the question until he is old enough and mature enough to decide, but what about visitation to me? Does he not have the right to visit me?

 

[Proserpina]

OP, you likely won't be getting primary custody ever - at all - unless your ex agrees to it.

You absolutely have the right to file for visitation; but you'll have to do so using Australian laws and procedures. Mom will have a good chance of insisting that visitation takes place in Australia and not the US until your son is at least in his teens).

Is it possible for you to move back to Australia? That honestly seems to be the only chance you're going to get at remaining close to your son.

 

[aldrous]

in order to move back, it means to re-apply for residency. lots of costs i don't have. it means i need to find a job again in Australia. i only get a week off from work so visitation on in Australia, seems just cruel to my son. It's over 24 hour flight, which means barely 4-5 days with him.

They won't agree for him to visit here even if i pay and travel with him???

 

[Proserpina]

Unless Mom is ordered by the court to send your son, she's not obliged to allow him to travel to the US.

I'm really sorry Dad. I do feel your pain. But, you made a choice to return to the US and abandon your Australian residency. Even though your reason might have been sound, your decision has major consequences. Mom currently holds all of the cards and truly, it wouldn't be difficult for her to convince the court that international visitation is not appropriate for your child.

 

[aldrous]

I don't see how it would be so easy for her to convince the courts that international visitation is not appropriate? He is in no harm or danger. I even said I would pay for his flight and arrange a way that I can be with him during the flight here and back.

Sorry to question your opinion so much but what is your background in this field? Are you in law or have had cases similar? My solicitor has mentioned there has been cases that the courts even ordered international visitation and the child must fly back on his own, supervised by the airline he/she uses. Of course this is only for direct flights and most probably intended for shorter flights.

 

[Proserpina]

Two words: Flight risk.

If Mom can articulate that you would not put your son back on the plane, she'd at least make a case that you should visit in her community. Your child's age would likely be a factor at this point, but less important once he gets older.

Your solicitor is correct - international visitation can be ordered. UM (unaccompanied minor) rules vary by airline and yes, this would only be for direct flights as a very general rule.

I am not an attorney. My background is basically research. I post to several family law forums, and I do have extensive knowledge in several areas of family law.

 

[army judge]

OP, Proserpina is about 98% accurate with her advice.

That's pretty darn good.

I'm an attorney, and also licensed to practice in Australia.
I hold the old QC title.
That said, an Australian court would be reluctant to allow what you desire, unless the matter was litigated in their courts.


With a good barrister working for you, it's possible. Its also expensive. The airfare alone is a killer.

I'm afraid you've been bested for the moment.

I suggest you consult with a good attorney (barrister) down under.

 

[aldrous]

I am in contact with a solicitor in OZ and we are beginning the intake interviews this month on child visitation with Relationships Australia. I know it will be expensive especially if it goes to the court system as I expect it to. I also know the airfare is a killer too. I feel I must go as far as my finances allows in order to get proper visitation with my son. I understand the fear my ex may have about flight risk but she had allowed me to take him here for a month after our ugly split, she should have no argument to the case that I would break the Hague Convention law of child abduction. As you can tell I have done extensive research in the matter. She has done a lot of wrong to me, my son, to her family and now she feels the guilt and lashes out on others. Since she was the betrayer, she now can't trust anyone. I still don't see the reluctancy a court would have in granting visitation here if I give all details where he will be living and where he can be contacted.

I believe once I visit there for a brief time allowed by my work, that he will soon be just as close to me as we were and would be desiring to come back with me to stay for bit. Our son was always closest to me then to his mom, I did more things with him than she. Even her family saw how close he was to me. I believe she is saying things to him to distance him from me. I think if he was talked to by a qualified counselor that he may tell them that mommy said this, mommy said that about me. Even her closest family members believe she is coercing him.

 

[army judge]

OP, no one (especially a judge) is going to listen to or care what your son says.

He's a kid. He has no say in any of this.

I suggest you work with your lawyer and follow his/her direction only. Too many cooks spoil the stew.





Stay away from how evil and bad she is. Don't trust her family. Stop talking to anyone but your lawyer. Finally, focus on how much you love Junior and show how you've been and will continue to be a great dad and law abiding citizen, tax payer, employee, and provider for Junior!!!

 

[dadsdivorce]

One item is to keep a journal of events. This journal should consist of the dates and things you do with and for your child, in addition to anything the mother says or does. This journal should also keep a record of all visits you make with or on behalf of your child to teachers, counselors, doctors, etc... However, I strongly urge you to keep your emotions and personal thoughts or judgments out of the journal. This journal can be used to produce exact dates, times and events as opposed to attempting to remember and reconstruct the events later. It can be a very useful tool for your attorney. Discuss this with your attorney as soon as possible.

As already mentioned, you need to follow the direction of your attorney. If you have a question or think there might be something you should do, consult with your attorney first.

Also as arleady stated, don't trust anyone but your attorney. The issue here being that attorneys often find their clients give tidbits of strategy away during meetings, especially when they believe an opposing party family member is on their side (or their ex for that matter). Even the things that go unsaid can often give enough information to anyone with the opposing party to fill in the blanks. You need to be extremely careful to not let anything slip and to protect yourself at every turn.