Minors are often the Unintended Victims of Cross-border Divorce

One of the most difficult aspects of divorce is making arrangements for the children of the marriage; their well being and where they shall live are rarely easy decisions.  This is made infinity more difficult if the parents are citizens of different countries.  Frequently when a marriage fails there is a natural desire on the part of an individual to return to their home country, this, of course, poses a problem with regard to the children. 

In a case reported in Unione Sarda and La Nuova Sardegna recently, a dispute between a divorced couple who are citizens of different countries, the father is French and the mother Italian, their two children are 11 and 5 years old, has been decided on by the Court of Cagliari. The family had lived in France during the course of the marriage and on the breakdown of the marriage the mother returned to Sardinia taking her children with her.  Following the divorce, the custody of the children was shared between the parents and it was decided that the children would live with their mother in Sardinia and the father had the right to access.  Following a challenge by the father this decision has now been overturned in the Court of Cagliari which has ordered that there be the immediate repatriation of the children to France, despite it being in the middle of a school year.

The basis for this decision is the “Convention for the protection of minors and cooperation in the field of international adoption” - signed at The Hague on 29 May 1993.  The Convention provides directions for all parties, in the event of a dispute, which invokes the concept of habitual residence of the child or children identified as the place where the family was normally situated prior to the marriage breakup.  The presumption is that the children will benefit from remaining in a place that they are familiar with, and also where the continuity of their education proceeds uninterrupted.

When the courts in any jurisdiction have to make such decisions in the best interests of the children is the prime consideration and not those of the parents.  It is obvious that usually, one parent is going to be unhappy if their children are being brought up in a different country especially if they do not have the opportunity to see them as frequently as they would like to.  The lawyers in Giambrone’s family law team frequently deal with cross-border divorce and often the question of the children’s place of residence is the most contentious aspect of the matter. 

Anyone who finds themselves facing such a situation following their divorce needs legal advice from lawyers who are competent and knowledgeable in this area of law as all the courts are reluctant to keep changing the arrangements made for children as it is very disruptive for them, so any decisions that are made with regard to minors are difficult to alter in the absence of new compelling factors arising after the initial decisions were made.

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