I am a member of the State Bar of California and I have comprehensive knowledge of family law -- and U.S. Immigration law. You asked:
1. In December 2010, an Australian woman, the subject of this enquiry to you, married an American man in Nevada, USA. The woman has retained her Australian citizenship and passport. They have been living in California since the marriage.
2. A child was born of the union, in January 2012, in Australia. The child retains his Australian citizenship and passport.
3. Since the marriage, the woman took several trips back to Australia together with the child.
4. The woman’s most recent period of stay in the US has been since January 2013, intending to visit Australia again in early June or in early August. Does this have any bearing on her status of being an Australian citizen and possibly initiating divorce proceedings in Australia, have met the required Australian law conditions?
A: California law requires six months residency in the state, and three months residency in a county, before a judgment of marital dissolution may be entered by a California court. Cal. Family Code 2320(a). A California court will recognize a foreign divorce judgment under the doctrine of comity
("voluntary cooperation between nations"). See In re Stephanie M. (1994) 7 C4th 295, 313–314, 27 CR2d 595, 605.
The California “comity” standards for recognition and enforcement of a marriage dissolution granted by a foreign country are two-fold:
- The judgment must have been valid in the country where rendered (Burt v. Burt (1960) 187 CA2d 36, 9 CR 440); and
- At least one of the parties must have been domiciled in the forum country at the time of the proceeding (Harlan v. Harlan (1945) 70 CA2d 657, 161 P2d 490).
However, California will not recognize a foreign divorce judgment if the party obtaining the divorce did so as a means of evading California law. See Marriage of Stich (1985) 169 CA3d 64, 214 CR 919.
5. The woman plans to return to Australia either in early June or in early August, with the child.
6. Under California law, is there any obstacle to such a trip, (a) with the father or (b) without the father?
A: California law has no power to control the emigration of persons from the state to a foreign nation. Federal law preempts all state laws on the subject of immigration/emigration. If the child has an Australian passport, then the child can travel on that passport.
There is a 1980 Hague Convention on the Civil Aspects of International Child Abduction
. Both the USA and Australia are signatories. If you relocate with the child to Australia without the other parents consent, that parent may be able to use the Hague Convention to recover the child against your will. It would be almost certain that the father would have to travel to Australia and testify in court to obtain custody over the child, and whether or not the court would grant custody to the father is extremely uncertain. See Holder v. Holder (9th Cir. 2004) 392 F3d 1009, 1014; Marriage of Witherspoon (2007) 155 CA4th 963, 971, 66 CR3d 586, 591; Marriage of Forrest & Eaddy (2006) 144 CA4th 1202, 1210, 51 CR3d 172, 177.
I cannot promise that the mother
/wife would prevail, if the father institutes a Hague Convention recovery action. I can promise that the litigation would be extremely costly for everyone involved. 7. Based on California law, is there any obstacle to the woman initiating a divorce in Australia, having met the required Australia law conditions?
A: Yes, see above.
8. After any such divorce, the woman wishes that the child would reside with her in Australia, providing visitation rights to the father. Will there be any obstacle to this in California law?
A: Yes. See above.
9. There is a possibility that the man will initiate divorce proceedings in California in the near future. What implications will that have to the woman’s intentions as described above?
A: If the husband files for divorce, then he may obtain temporary orders
prohibiting the removal of the child from California. If this happens, and the wife leaves with the child, then that may be a felony criminal offense, at which point the Federal Bureau of Investigation could be involved, and the matter could turn into a criminal action in Australia.
Please let me know if I can be of further assistance.