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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33946
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I have residency of my 12 year old son however his father who

Resolved Question:

I have residency of my 12 year old son however his father who resides in the US has applied to the UK courts to take my son to live with him.
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What contact has he been having and how does your son feel about the possibility?
Why is he making this application?
Clare
Customer: replied 3 years ago.

Hi Clare


 


Thank you for getting back to me. His father was granted half the school holidays plus 5 long weekends. This time has been made available to him although he states it hasn't. I can however provide email evidence that his contact has been more than fair. The only issue which has arisen is that I have not agreed for him to take him to America on holiday as I firmly believe that he would not return him to the UK.


 


I received a letter yesterday from his solicitor advising that he has applied to the court for our son to go and live with him in America. I asked my son for his thoughts and it was very apparent that he was fully aware of his father's intentions for him to live in America. My son has said that as I have had him for the first 12 years of his life it only seems fair that his father has him for the next 6 years. I am well aware that his father has been making attempts to alienate my son from me and also from other significant people in our lives including my sisters and brother who are a wonderful support and have always been.


 


We separated before our son was born and he has never lived with us. My son has a stable family life with friends and activities he enjoys.


 


I have gently explained to my son that if he were to go to America it would be permanent and I would not see him again. He says his father has told him on numerous occasions that he would bring him back to this country to visit me and I know this would not be the case at all despite anything a court may decide otherwise.


 


My mother who sadly passed away last July told me that she personally was becoming increasingly aware that my son's father was filling his head with lies and that my son absolutely believes everything his father tells him which is very worrying.


 


I would really appreciate your advice as firstly I obviously do not want my son to move to America and secondly this man emotionally abused me for years and it has only been since I've met my now partner that I have felt free of him. He can no longer control me and is now controlling my son and as dramatic as it may sound he would ruin my son's life.


 


Kind regards


 


Susan

Customer: replied 3 years ago.

Hi Clare


 


Apologies as you asked for the reason why he is making the application. I actually do not know the reason why.


 


Kind regards


 


Susan

Expert:  Clare replied 3 years ago.
Hi
What contact has he actually had in the last two years?
Has your son spent any time in the states?
Clare
Customer: replied 3 years ago.

Hi Clare


 


He has had half the school holidays (however chose not to have him for exactly half).


 


No he hasn't been to America.


 


Kind regards


 


Susan


 


 

Expert:  Clare replied 3 years ago.
Hi
Why do you feel that your ex would be able to get away with not returning the child after a holiday?
Clare
Customer: replied 3 years ago.

Hi Clare


 


I truly believe, as do my family and friends, that he simply wouldn't return him to the UK and I'm not willing to take the risk of him not returning him and me then having to go through the courts to have him returned to this country. Incidentally he is British and as far as I am aware is still a UK resident. He moved to America (i think in 2008) to get married to a US resident.



Kind regards



Susan


 


 

Expert:  Clare replied 3 years ago.
Hi Susan
Your ex is fully entitle to apply for Residence and the right to take the child to the US to live
At 12 your sons wishes will be very important - as I suspect your ex has discovered.
However it is clear that you son has given no real thought to what the move will mean in terms of the change in schooling, leaving behind his friends and indeed he has no idea whether or not he will even like living there
On that basis there is little chance of the application succeeding since it is not properly thought out and planed
HOWEVER equally I am afraid that the court is not going to see your objections to the child spending holidays abroad as reasonable and it is VERY likely that future contact will indeed take place in your ex's home in America - the only reason it might not is because the application that he has made could support your argument that this is about controlling you rather than wanting more time with the child.
So far as your concerns about him retaining the child is concerned not only would it not succeed - he would be forced to return the child - but it would also compromise his right to remain in the States as well as reduce the chance of his having further contact with the child outside of a Contact Centre
I appreciate that this is not what you wish to hear but I do have to explain the law as it is and the risks that you run
Please ask if you need further details
Clare
Customer: replied 3 years ago.

Hi Clare


Many thanks for clarifying the above which is appreciated. I did believe that the court wouldn't consider my objections as reasonable and would quite likely agree for contact to take place in America. Other than him telling me he lives in Miami which I believe to be true, I have no contact details for him and he has also advised my son only last week that he is planning on moving house. If he were to take him to the States and were not to return him I would have no idea how to locate him.


I did read on Cafcass's website that if there had ever been any form of abuse (either physical or emotional) and that either your GP, the police or Women's Aid have been contacted then this should be mentioned. Can you please clarify if this is true as my GP has been aware of past events and who suggested at the time that I contact Women's Aid with whom I then undertook a 10 week program (I think it was 3 hours once a week ) aimed at women who had been abused either physically or emotionally (no physical abuse ever occurred). I contacted the police when my son was about 18 months old as my ex wouldnt leave me alone and a family liaison officer came to see me and offered to speak with my ex but I declined their offer believing it would make matters worse. I still have the crime reference number but I'm not sure whether this would be relevant today.


Apologies for all these questions but can you also advise how long the process is likely to take regarding my ex's court application and exactky what the process will involve?


I am unable to afford a solicitor to act on my behalf as I'm a single working mum (my partner and I do not live together).


Many thanks & regards


Susan

Expert:  Clare replied 3 years ago.
Hi
Before Contact took place in America the court would need to have full details of where your ex is living.
Since he is not in fact an American Citizen it will not be easy for your ex to disappear in the States so tracing him is unlikely to be difficult
You should indeed mention the abuse - it explains your current fears
The process will take between six and nine months
There are more details here
http://www.silvermansherliker.co.uk/newswires/12oct-international-relocation-of-children.htm
Please ask if you need further details
Claee
Customer: replied 3 years ago.

Hi Clare


Thank you for reply.


If my ex does have full US residency would this make any difference in tracing him?


When I receive a copy of the court application what action do I then need to take?


If he is not awarded residency of my son however is allowed to take him for contact in the States, what risks do I run if I do not hand over my son for this contact and would I be imprisoned? If I were to do this would it affect any residency I had of my son?


Kind regards


Susan


 

Expert:  Clare replied 3 years ago.
Hi
To be frank not really
Once the Court Application is received you will have to attend court and also start preparing your case - you will also hear from CAFCASS
Refusing to obey a court order for contact could indeed lead to imprisonment - but is more likely to persuade the court that Residence should indeed transfer to his father
You need to discuss the issues with regard to recovering children from the States with the charity Reunite www.reunite.org as this will give you information that you will find of assistance
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33946
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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