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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33502
Experience:  Retired (mostly)
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Question is on California Family Law

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Please note, this is not about Australia Law, it is about California Law.


 


This is a question primarily on California Family Law - I need a response from a person specialised in that subject. Please provide credentials for this. I think the questions are clear, and I need responses to them. Additional comments are welcome. In responding to the queries below, may I ask that you please quote the California Law clauses, stating also the Legal Document you are quoting from? 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? 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? 7. Based on California law, is there any obstacle to the woman initiating a divorce in Australia, having met the required Australia law conditions? 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? 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? With grateful thanks in anticipation, Kesara Goonawardena

Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.
Hello,

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:

  1. The judgment must have been valid in the country where rendered (Burt v. Burt (1960) 187 CA2d 36, 9 CR 440); and
  2. 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.

socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33502
Experience: Retired (mostly)
socrateaser and 12 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Mr Socrate(a)s(e)


 


I am a mere engineer but with long experience in Australian Family Law through self-representing in the Family Court (9 years). With that background, may I say - this is an excellent response - 6 stars (at least) out of 5.


 


How much time do I have to ask you for a couple of clarifications? I will also forward this to the woman concerned - she too may have a question or two, which I will clarify for you if required.

Expert:  socrateaser replied 1 year ago.

There are no "mere" engineers.

Concerning time to seek clarification, you can take as long as you want. I never abandon a customer, except where the follow-up questions unfairly depart from the original subject matter.

Customer: replied 1 year ago.

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.


 


You mean "No, there is no obstacle" in both cases, I think - is that right?



Thank you, XXXXX XXXXX (I feel certain there is more than one reason you chose that Nom de Expert - ancestral, perhaps? And philosophical inclination? There was only Socratic Love, not Platonic Love)


 


 

Expert:  socrateaser replied 1 year ago.

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: The wife can file for divorce in Australia. The Australia court can issue a judgment dissolving the marriage. However, unless the husband "submits to the personal jurisdiction of the Australia court," the court cannot divide the marital property or award spousal support/alimony, because no California court will enforce the judgment. Submission to personal jurisdiction means to physically appear or file pleadings with the Australia court for any reason other than to challenge its authority to make orders concerning the marriage that would personally affect the husband. The reason why this is not recognized in California, is because making orders over a person or property who has no submitted to personal jurisdiction of a court, and who has no minimum contacts with a foreign jurisdiction violates the traditions of "due process of law" which are fundamental to the U.S. legal system. Consequently, no U.S. court will give any such orders comity.

 

Special treaty rules can create a child support award, and it is traditional that the act of granting a divorce (the "status" of marriage) can be granted without both spouses being subject to the court's personal jurisdiction, because in California, only one spouse's demand is required to order the marriage dissolved. So, there is no reason to bar a divorce based upon no personal jurisdiction over the other spouse.

 

So, yes, there are obstacles. Especially if there are marital assets located in California or elsewhere in the USA -- or if the wife seeks spousal support.


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: As previously mentioned, if the wife leaves California with the child, and she has not obtained custody orders from a California court, then husband can exercise the provisions of the Hague Convention, which may be sufficient to cause an Australia court to order the child returned to California. In practice, courts are extremely protective of children, so despite the Convention, if there are allegations of physical abuse by the father, the court may refuse to issue orders. At which point, the father would have to travel to Australia and attempt to obtain custody orders.

 

This circumstance is what I call a "crap shoot." There is no way in advance to know what a court is likely to do. If the wife wants certainty, then she needs to file for dissolution of marriage in California and obtain all of the orders necessary to confirm her rights and obligations before she leaves the USA.

 

That is the only way to have certainty in this circumstance.

Customer: replied 1 year ago.

Thank you Socrateaser, possibly the woman will have more questions - I wait.

Meanwhile, are we not permitted obiter dicta?
Expert:  socrateaser replied 1 year ago.
Actually, we are not permitted. The only thing permitted is questions and answers about the law, and for that, you are expected to pay.

Please take no offense.
Customer: replied 1 year ago.
Quite understand, no offence whatsoever, I plan to offer me as Expert.
Customer: replied 1 year ago.
Thank you - the woman is in the US and still unavailable because of being asleep.

In about 6-8 hours from nonw, if she has a further question, she will contact me. My asking the questions on her behalf is her choice.

Best Regards,

Kesara
Expert:  socrateaser replied 1 year ago.
Okay
Customer: replied 1 year ago.

Dear Honoured Socrateaser,

The lady we corresponded about is coming to Australia in early June.

It is likely she will have further questions and we will contact you as soon as she does come.

With grateful thanks for your support,

Kesara XXXXXXXXX

Expert:  socrateaser replied 1 year ago.
Assuming that I'm still alive, I'll be happy to assist.

Please open a new Q&A session at that time.

Best wishes.

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