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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 34460
Experience:  Retired (mostly)
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Resolved Question:

I am a returning customer. There were messages from you asking if we had further questions on the same subject. These are the further questions and I had the impression that the earlier payment would cover this as well. As such, if the payment I make today is not needed, please refund.

ATTENTION OF SOCRATEASER please.


Further questions on the same subject as before.

If you need clarifications concerning Australia Law, please ask, we can get responses and forward to you.

(In responding to the queries below, would you please quote the California Law clauses (not Case Law only), stating also the name of the Legal Document being quoting from? Would you also please provide the same information for the earlier (well appreciated) reply?

NEW INFORMATION MAINLY ABOUT EVENTS AFTER THE EARLIER SUBMISSION

1. Same man (M) and same woman (F). same child (C)

2. F returned to Australia early June with M and C

3. About 1 week after returning to Australia, F told M that she and C would not be returning at this time to the US. M had been thinking his return to the US would be along with F and C.

4. Arising from the above change, M has already returned to the US (not at the end of the month as planned), hoping that F and C would be following later, after F’s father returning to health, following 2 haemorrhagic strokes in the past 4 weeks.

5. At this point, F thinks such return is not a possibility. However, M is aware that F and C remaining in Australia is indefinite, considering the circumstances.

6. While M now lives in California for his work as a Marine, his Family of Origin is in New York and Pennsylvania. His connection with them is fairly close.

7. The relationship between M and F has not been healthy. There were weekly visits to a counsellor by both of them. The relationship has been marked by significant bullying and threats of physical violence by M towards F.

8. F expects another child in mid-November.


ISSUE A - LONG TERM AND FINANCIAL

9. M told F that without F and C having Social Security numbers, M cannot file retirement papers (retirement can take place end 2013). F thinks this is unlikely.

10. F is not agreeable to C getting dual citizenship - Australian and US. F has stated this to M, and stated a refusal to sign any relevant documents for obtaining such dual citizenship.

11. M has said that he wishes to make C the beneficiary (or a beneficiary) of his pension and of a Will that he intends preparing. M has said this will not be possible unless C has a Social Security number. This is a matter of concern for F, who considers such requirement unlikely. F would like to know if C cannot be a beneficiary – of pension and Will - without a Social Security number.

12. In the past 8 weeks, M purchased a house with the aid of a bank loan. To enable such a loan from the bank, F was required, by M and by the bank, to sign away any and all claims on that house. F wonders if such signing-away, for which she was denied any legal advice, is valid, and if it would remain valid in the event of a divorce and property settlement.

13. F is aware that the (Govt) Child Support Agency of Australia has reciprocal arrangements with corresponding Govt bodies in the US to ensure child support is paid, even if a formal separation or divorce takes place. F wishes to know of any pitfalls or difficulties that may arise in this.


ISSUE B - WELFARE OF CHILDREN AND THEIR CONTACT WITH PARENTS

14. F fears that in the event of a formal separation or a divorce, C – when older - will be required to travel to the US to spend time with M, the father. F is deeply concerned about the risks in doing this, because from her knowledge of examples, there is a significant possibility of M taking C to (for example) Mexico or a South American country, and “vanishing” with C, thus preventing any further contact with F - in effect F loses C. F wishes to take all possible precautions to minimise or eliminate this eventuality. F seeks guidance for this.


ISSUE C - A DIVORCE

15. F is concerned a divorce could happen, and is deeply worried about difficulties she considers could – and would - arise if M initiates a divorce in the US , while F and C remain in Australia. F fears an international custody battle.

16. Even if such does not occur, F gathers that M, on retirement, would prefer to remain in the US East Coast, close to his Family of Origin, and not return to Australia to reside.

17. Considering the above and any other relevant issues, F wonders what options M could be having and considering, that F would be well advised to prepare for.

18. In conclusion, F would like to know of any other considerations overall, that you may wish to suggest F should act on or prepare for.


ATTENTION OF SOCRATEASER PLEASE
Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.
Hello,

Thanks for requesting me again. I have some offline business going on today. I'll get back to you this evening. Note: It's 3:33 PM Monday, June 17, where I'm currently located.
Customer: replied 1 year ago.
Thank you Mr Socrateaser the Learned,

We will wait. Patiently.

Thank you,

Kesara
Customer: replied 1 year ago.
Dear Mr Socrateaser,

My question was not an Australia Law question. It was a California Law question with a couple of threads going to Australia.

We look forward to receive your correspondence.

Kesara Goonawardena
Expert:  socrateaser replied 1 year ago.
Sorry for the delay. You asked:

11. M has said that he wishes to make C the beneficiary (or a beneficiary) of his pension and of a Will that he intends preparing. M has said this will not be possible unless C has a Social Security number. This is a matter of concern for F, who considers such requirement unlikely. F would like to know if C cannot be a beneficiary – of pension and Will - without a Social Security number.

A: False for VA (Veteran's Administration) benefits. See this link from the VA (Scroll down to Section 19). False for any Will or other testamentary instrument, because Wills, Trusts, etc., are controlled by state law, where a Social Security Number is XXXXX irrelevant. California Probate Code § 7000.

12. In the past 8 weeks, M purchased a house with the aid of a bank loan. To enable such a loan from the bank, F was required, by M and by the bank, to sign away any and all claims on that house. F wonders if such signing-away, for which she was denied any legal advice, is valid, and if it would remain valid in the event of a divorce and property settlement.

A: F's quitclaim of all right, title and interest in and to the real property would be valid as against the lender (California Evidence Code § 662) but invalid as against M, if the effect of the quitclaim was to produce an unfair advantage to M.

The mere existence of a marriage relationship does not itself create a presumption that a marital contract was procured by undue influence (Snyder v. Snyder (1951) 102 CA2d 489, 492, 227 P2d 847, 849). However, to the extent a marital agreement provides one spouse with an advantage over the other, it is presumptively the product of undue influence and inadequate consideration. Marriage of Fossum (2011) 192 CA4th 336, 343–344, 121 CR3d 195, 201–202; Marriage of Burkle, supra, 139 CA4th at 729, 43 CR3d at 193 & fn. 8.

13. F is aware that the (Govt) Child Support Agency of Australia has reciprocal arrangements with corresponding Govt bodies in the US to ensure child support is paid, even if a formal separation or divorce takes place. F wishes to know of any pitfalls or difficulties that may arise in this.

A: The principal difficulty is enforcement. However, since the presumed obligor parent in your hypothetical is a member of the U.S. Military, enforcement will not be difficult, because the source of income is easily determined and enforced by U.S. child support enforcement agencies.

ISSUE B - WELFARE OF CHILDREN AND THEIR CONTACT WITH PARENTS

14. F fears that in the event of a formal separation or a divorce, C – when older - will be required to travel to the US to spend time with M, the father. F is deeply concerned about the risks in doing this, because from her knowledge of examples, there is a significant possibility of M taking C to (for example) Mexico or a South American country, and “vanishing” with C, thus preventing any further contact with F - in effect F loses C. F wishes to take all possible precautions to minimize or eliminate this eventuality. F seeks guidance for this.

A: There is always a risk of concealment of a minor child. The noncustodial parent can be ordered to post a surety bond of some substance, so as to make the decision of concealment expensive -- but, sometimes, money is insufficient to restrain the parent's future actions. The only way to absolutely avoid the risk is to have a custody order which permits only supervised visitation within the child's home state. That's a question for a court to decide.

The situation you currently describe is that M has voluntarily permitted F to remain in Australia with C, and M has left. Effectively, M's actions have permitted Australia to exercise jurisdiction for the purposes of determining an initial custody order, because F's and C's relocation was acquiesced to by M. Were I representing M, I would probably have said something like, "Big mistake -- huge. Don't do it." But, it's too late now.

ISSUE C - A DIVORCE

15. F is concerned a divorce could happen, and is deeply worried about difficulties she considers could – and would - arise if M initiates a divorce in the US , while F and C remain in Australia. F fears an international custody battle.

16. Even if such does not occur, F gathers that M, on retirement, would prefer to remain in the US East Coast, close to his Family of Origin, and not return to Australia to reside.

17. Considering the above and any other relevant issues, F wonders what options M could be having and considering, that F would be well advised to prepare for.

A: Were M to initiate dissolution proceedings immediately, and claim that F remained with C in Australia without M's consent, and despite M's pleas to bring the child back to California, then M may be able to invoke the rules of the Hague Convention on the Civil Aspects of International Child Abduction, and thereby obtain the return of the child to the USA. But, based on your allegations, M would have to falsely testify to obtain this advantage -- but, M wouldn't be the first person in the history of family law to do so -- because, in my experience, everyone lies in family court. The judge's principal role is to try to determine who is lying the least -- not who is telling the truth. Sad, but true.

18. In conclusion, F would like to know of any other considerations overall, that you may wish to suggest F should act on or prepare for.

A: If the child remains in Australia for at least six months and M does nothing to try to obtain the child's return to the USA, then a California court would hold that Australia is the home state of the child and deny further litigation concerning custody. Concerning property held by either M or F in the USA, a California court would retain jurisdiction, and probably refuse to recognize an Australia court's exercise of jurisdiction, unless M voluntarily submits to Australia as the jurisdiction for determining property division.

Recognition and enforcement of foreign country judgments ordinarily turns strictly on principles of “comity”—i.e., voluntary cooperation. In re Stephanie M. (1994) 7 C4th 295, 313–314, 27 CR2d 595, 605. N.B.: Cal. Family Code § 3442 expressly states that California courts “may enforce an order for the return of a child made under the Hague Convention ... as if it were a child custody determination.”

Hope this helps.
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 34460
Experience: Retired (mostly)
socrateaser and 8 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Dear Mr Socrateaser,

Would you please address the following.
17A 1. ... dissolution proceedings immediately, and claim ... Our request is, what is the time limit for "immediately" - is this related to the 6 month band mentioned elsewhere?

17A 2. M entered documents at Customs stating that F and C were returning home. F and C returned using the return leg of their air tickets. While in Australia, M made no effort to procure return tickets for them. What documentation besides the above-mentioned would be needed to establish that F and C remained in Australia with M's consent?

18A 1. Of his 17-month life, the child has been in Australia more than 6 months in total. There were 2 or 3 episodes of residence in the US. Is that sufficient for "at least six months" or does such a period have to be continuous.

18A 2. If F has (or even has not) valid reasons to remain in Australia with C, and suggests to M that he relocate to Australia at least for contact with C even if a divorce took place, and M is by that time retired (due December 2013), which Clauses in the Hague Convention and in California Family Law would apply, assuming that Comity was not prevailing.

NOTE F is particularly and extremely concerned and wishes to take whatever steps that may be needed to ensure that C (and the C due soon) do not leave the country. Guidance is earnestly requested for this.

Thank you,

Kesara Goonawardena
Expert:  socrateaser replied 1 year ago.
17A 1. ... dissolution proceedings immediately, and claim ... Our request is, what is the time limit for "immediately" - is this related to the 6 month band mentioned elsewhere?

A: Yes. California law (and the law of every other U.S. state jurisdiction: Uniform Child Custody Jurisdiction and Enforcement Act) provides that a court cannot generally exercise exclusive, continuing jurisdiction to make a child custody award, unless and until the child has resided continuously in that jurisdiction for at least six months.

17A 2. M entered documents at Customs stating that F and C were returning home. F and C returned using the return leg of their air tickets. While in Australia, M made no effort to procure return tickets for them. What documentation besides the above-mentioned would be needed to establish that F and C remained in Australia with M's consent?

A: I honestly do not have a good answer for this question. It's clear that M and F traveled to Australia voluntarily. It's also clear that M had to return to his employment. A court would want to know why F and C did not return at that time. Testimony from third parties could be used to show that the parties were not yet visibly estranged at the time that M returned to the USA. Which would mean that M consented to F and C traveling to Australia. But, showing that M returned to the USA with everything "okay" in the relationship, as opposed to showing that M returned after being unable to convince F to return -- there may be objective facts that would help show this -- but, I don't know what those facts would be at this point -- nor how you could document it objectively.

18A 1. Of his 17-month life, the child has been in Australia more than 6 months in total. There were 2 or 3 episodes of residence in the US. Is that sufficient for "at least six months" or does such a period have to be continuous.

A: Continuous, with temporary travel outside of Australia. The court would probably look at where the parties domicile (permanent physical residence) was located during that period. Obviously, if you're in Australia for a few weeks at a time, but living with someone else, and the you return to the USA, and reside in an apartment or home where you are the cotenant on the lease or where your name is listed on title or on the mortgage, then that suggests that Australia is not the child's home state.

18A 2. If F has (or even has not) valid reasons to remain in Australia with C, and suggests to M that he relocate to Australia at least for contact with C even if a divorce took place, and M is by that time retired (due December 2013), which Clauses in the Hague Convention and in California Family Law would apply, assuming that Comity was not prevailing.

A: For child custody purposes, a removal or retention of the child in a foreign jurisdiction cannot be “wrongful” if done with the consent of the person exercising lawful custody or if that person subsequently acquiesced in the removal or retention. Hague Convention, Art. 13; see Gonzalez-Caballero v. Mena (9th Cir. 2001) 251 F3d 789, 794 (alleged postremoval revocation of consent not effective to revive right to return of child).

But the court must consider the nature and scope of the consent allegedly given. Consent to a temporary removal, or consent given with conditions and limitations, is not consent to the child's permanent removal/retention so as to defeat a finding of “wrongful” removal/retention. See Baxter v. Baxter (3rd Cir. 2005) 423 F3d 363, 371–372 (collecting cases); Marriage of Witherspoon (2007) 155 CA4th 963, 972.

As you can see, it's really all about proving consent to the child remaining in Australia. Concerning the unborn child, that child will be subject to Australia jurisdiction, if born in Australia.

Hope this helps.
Customer: replied 1 year ago.

Friday, 21 June 2013 (this is a resend)

Dear Mr Socrateaser,

We do understand your role is more to convey the applicable concepts to us, and we apply those concepts to the facts.

Nevertheless, may we ask

1. C did not stay in the US for any continuous period greater than 5 months, nor in Australia for any continuous period greater that 5 months. We are uncertain of implications.

2. In 18A2 A, we presume "person exercising awful custody" would be one person. Preferably in this case, or even as a hypthetical, what facts would qualify which parent as the "person exercising lawful custody?

3. In 18A1 A, mention is made of "cotenant on the lease or name ... listed on the title or mortgage". In none of these was F given the opportunity of participating - not in lease, nor in any bills, nor on the mortgage on the house. F construes these as M appearing to have had no serious intention to ensure F domiciled in the US. Please comment on this.

Kesara Goonawawrdena

Expert:  socrateaser replied 1 year ago.
1. C did not stay in the US for any continuous period greater than 5 months, nor in Australia for any continuous period greater that 5 months. We are uncertain of implications.

A: The "domicile" (permanent residence) of the child is the first issue. Temporary absences from a place which can objectively be viewed as a child's permanent residence will not destroy the continuous nature of the residency. If the parent and child never established a domicile, then any jurisdiction in which the child is located can exercise authority to make an initial child custody order.

If an Australia court were to make a custody order in the first instance, then it would be for the California Superior Court to determine whether or not international comity should be accorded to that order -- assuming that a challenge were raised in California. The elements of international comity are: (1) opportunity for a full and fair trial; (2) in a court of competent jurisdiction; (3) regular court proceedings; (4) sufficient notice of court action to the defending party/ies, so that they may appear and defend; (5) a legal system likely to secure an impartial judgment; and (6) no evidence of prejudice or fraud in the judgment of the court. See Hilton v. Guyot, 159 U.S. 113, 202-203 (1895).

More than likely, a California court would accord comity to the Australia order, assuming that the requisite elements are satisfied. But, there are no guarantees.

2. In 18A2 A, we presume "person exercising awful custody" would be one person. Preferably in this case, or even as a hypothetical, what facts would qualify which parent as the "person exercising lawful custody?

A: I think you mean "lawful," not "awful" custody. In this circumstances, lawful custody means that the child is in Australia not through some trick or deception, so that the impaired parent freely and voluntarily consented to the child's remaining in Australia with a full understanding of the result of his consent.

3. In 18A1 A, mention is made of "cotenant on the lease or name ... listed on the title or mortgage". In none of these was F given the opportunity of participating - not in lease, nor in any bills, nor on the mortgage on the house. F construes these as M appearing to have had no serious intention to ensure F domiciled in the US. Please comment on this.

A: California is a community property jurisdiction. Cal. Family Code 910(a) makes married persons jointly liable for each other's debts incurred during a valid marriage (and prior to permanent physical separation), while domiciled in California. Moreover, the U.S. Fair Housing Act (42 U.S.C. 3601 et seq.) prohibits landlords from discriminating against persons on the basis of their familial status. So, even if F (and C) were not named on the lease, F and C have the right to reside in the property with M, and F is obligated to contribute to the lease costs. M's intent is probably irrelevant in this circumstance.

Hope this helps.
Customer: replied 1 year ago.


Dear Socrateaser

This enquiry arises from your response to our earlier “Question” – it is a follow-up on our earlier ones. It appears the matter under review is becoming more focused.

We commence with a recent correspondence. The notations identifying sender are ours, using the same convention as before. Superscripts are for our questions below.

==========================================

F. I sent email and requested he deposit some funds. He totally ignored it and in part of his reply he wrote this...

M. I'd really appreciate it if you would not resist Lorenzo's citizenship1. The accountant said I won't be able to claim him as a dependent until he has that and ssn2. And since that's the case it will also chop down my pension because its more with dependents. With no dependents the disability pension is less from veteran administration and that affects other retired benefits for us all and my military pension will be taxed more3. Right now I have to pay $1600 in taxes plus something got messed up with escrow and home owner insurance when triemerald sold the loan and now the insurance co wants $1800 lump sum instead of monthly payments4. Plus my retirement leave can't start until I complete that retired pay and survivor benefit pension transfer form (which says that you or our sons or all of you can get part of my pension when im gone) which also has to be signed by you in front of a notary and it has to be at the retired pay office no later than 30 days before I retire.5 I know you don't want to believe me but we need to do this and as soon as possible. The lady said it takes up to three months for his ssn to come back. The Sydney consulate staff is visiting Brisbane in late July; it would be great if you would get it done for Lorenzo. Please let's be reasonable and rational about this6.

F now states as given below:

  1. A brief background to M’s statement above is : F and M had agreed, before a Counselor, that M would relocate permanently to Australia upon retirement early 2014. F had also agreed that when C reaches school going age, the family would move to the US, having lived in Australia until then.

  1. In common with many of M’s claims above and commented on below, M’s claim here appears unlikely. Many Marines have wife and children abroad and its members would be claimable as dependents (but see below, which probably obviates the need to). What would be the value of such a claim by M? If F continued to reside in Australia with C, there are some (small) Australian Government benefits, possibly smaller than the dependent allowance M mentions.

  1. F wonders if this is significant, compared to M moving to Australia permanently and receiving retirement benefits here, and considering freedom from Double Taxation. The following IRS link possibly covers this. http://www.irs.gov/Individuals/International-Taxpayers/U.S.-Citizens-and-Resident-Aliens-Abroad

  1. All of F’s possible claims on the house that M refers to were relinquished in writing at the time of its purchase. F thinks M has no moral basis for bringing up this subject in the current context. Though F was aware a house purchase was being planned, and had some interest in such purchase, after F was asked to expect to waive any and all rights to the house at the time of purchase, F became uninterested. F did not participate in the decision to purchase a (the) house.

  1. F thinks survivor benefit pension transfer would flow to the spouse, and only to the spouse until the children were of age. If so, F thinks it appears M is just attempting to make a case for obtaining US citizenship for C, when a case on this basis does not exist.

  1. F holds that M has not been (quote)“reasonable and rational” (unquote) towards considering – or even giving a hearing to – F’s strongly-expressed preferences concerning country of residence of the family after retirement, and M ignoring a stated (witnessed) undertaking in this respect, F thinks M has no moral basis to request F to be “reasonable and rational”.

  1. Your comments on the above will be welcome.

By way of clarification for you of F’s frame of mind, she submits the following:

  1. F’s personal situation and primary needs
    1. Ensure C1 and C2 grow up in a suitable environment, surrounded by love and free from anger
    2. Ensure a nurturing and loving atmosphere for me
    3. Ensure my parents are cared for lovingly
    4. Ensure satisfactory finances for C1 and C2
    5. Ensure satisfactory finances for me
    6. Preserve my marriage

  1. F’s immediate concerns
    1. Put in place systems and processes with the intention of retaining the children with me
    2. Put in place systems that are likely to obviate attempts being made to change (a) above
    3. Ensure my continuing residence in Australia

  1. F’s medium-term concerns
    1. It appears that problems (behaviour etc) being handled by husband could be adverse towards the children and towards me
    2. Many sessions of counselling and encounters with other specialists have led to no visible changes

  1. There may be other, relatively minor, issues

  1. F is of the view that M’s behaviour in the past few weeks is somewhat inscrutable. F would like to know from you – if it is possible – what legal options F may be having and may be contemplating. This question does not at this moment need great detail in reply. An indication would be sufficient. The purpose of this enquiry is to enable F to prepare herself for possible actions by M, probably by learning what actions may be available to him, whether or not his intention is to bring about a dissolution of the marriage.

F thanks you for your valued support and guidance.

Expert:  socrateaser replied 1 year ago.
1. The accountant said I won't be able to claim him as a dependent until he has that and ssn

A: True. "The term 'dependent' does not include an individual who is not a citizen or national of the United States unless such individual is a resident of the United States or a country contiguous to the United States." IRC 152(b)(3)(A).

2
. And since that's the case it will also chop down my pension because its more with dependents. With no dependents the disability pension is less from veteran administration and that affects other retired benefits for us all and my military pension will be taxed more

A: Maybe -- depends on facts. See Military and Government Disability Pensions for taxability rules.

3. Right now I have to pay $1600 in taxes plus something got messed up with escrow and home owner insurance when triemerald sold the loan and now the insurance co wants $1800 lump sum instead of monthly payments

A: No comment.

4
. Plus my retirement leave can't start until I complete that retired pay and survivor benefit pension transfer form (which says that you or our sons or all of you can get part of my pension when im gone) which also has to be signed by you in front of a notary and it has to be at the retired pay office no later than 30 days before I retire.

A: M can overnight documents to you for signature at any U.S. Embassy/Consulate in Australia, and then you can overnight back to USA.

5 I know you don't want to believe me but we need to do this and as soon as possible. The lady said it takes up to three months for his ssn to come back. The Sydney consulate staff is visiting Brisbane in late July; it would be great if you would get it done for Lorenzo. Please let's be reasonable and rational about this

A: I'm not going to get into a contest about whether or not the child should have U.S. Citizenship. You'll have to decide what you believe is in the child's best interests.

General Comment. I don't think M is doing anything particularly untoward. Obviously, I can't think of every deceitful angle, but from what I'm reading, it appears that M just wants the best financial outcome -- and, probably would also like his child to be a U.S. Citizen. I can't argue with that desire -- I am, after all, a U.S. citizen, myself.

Hope this helps.
Customer: replied 1 year ago.
Dear Socrateaser,Please permit us - same subject, further questions.

1. 1. The situation is now as follows. Suppose that (as appears likely)

a. EITHER she (F) files first for divorce, in Australia

b. OR he (M) files first for divorce in the US

2. 2. F’s sole concern is the welfare of the children. She is deeply attached to them (C2 yet to arrive) and has been C1’s sole carer from his birth. She has family-of-origin support as needed for raising children. C1, now 18 months, has been raised from birth in Australia, save two “visit” periods of 5 months duration each, one this year and one last year. C2 is due in November.

3. 3. The family – M, F and C – returned to Australia early in June, M returned to US after 2 weeks.

4. 4. F wonders – if M files first for divorce in California, will F be at any disadvantage, especially connected to the custody/residence of the children and a likely need to obtain legal services in California. Conversely, if F files first for divorce in Australia would there be any impediments under California law, especially – primarily - concerning the children?

5. 5. If M files in California, would F have to be represented in California and would F have to be present?

6. 6. F considers initiating divorce in Australia so as to minimise possible complications concerning children and to avoid having to attend Court in California (to be avoided if at all possible).

7. 7. If F filed in Australia first, can M file after that in California, without reference to F’s application? In Australia it is not possible (shall check and confirm) – who files first prevents the other party filing except as a response. Is there a similar law or rule or practice in California?

8. 8. Since the beginning of June 2013, when F, M and C returned to Australia and then M returned to the US after 2 weeks, M has not sent any funds to F for the upkeep of the rest of the family. Instead, M has sent an email to F stating that he would support the family only if they reside with him in the US. This position, M claims, is based on a Binding Financial Agreement though F recalls that the latter is framed to be applicable only after a divorce.

9. 9. The Child Support Agency (CSA) in Australia has an agreement in place with its counterpart in the US, and F is considering applying to CSA to obtain child support from M, with the CSA taking up the matter with its counterpart in the US. F is mindful of the fact that such application may trigger a divorce application by M and requests comment on this.

10. 10. F would greatly appreciate an early response.

Expert:  socrateaser replied 1 year ago.
Dear Socrateaser,Please permit us - same subject, further questions.

1. 1. The situation is now as follows. Suppose that (as appears likely)

a. EITHER she (F) files first for divorce, in Australia

b. OR he (M) files first for divorce in the US

2. 2. F’s sole concern is the welfare of the children. She is deeply attached to them (C2 yet to arrive) and has been C1’s sole carer from his birth. She has family-of-origin support as needed for raising children. C1, now 18 months, has been raised from birth in Australia, save two “visit” periods of 5 months duration each, one this year and one last year. C2 is due in November.

A: If the child has "visited" California for 10 months of the child's 18 month life, then arguably, the child's home is California not Australia. If I were representing M, that's what I would argue in court.

3. 3. The family – M, F and C – returned to Australia early in June, M returned to US after 2 weeks.

4. 4. F wonders – if M files first for divorce in California, will F be at any disadvantage, especially connected to the custody/residence of the children and a likely need to obtain legal services in California. Conversely, if F files first for divorce in Australia would there be any impediments under California law, especially – primarily - concerning the children?

A: The question is too broad for meaningful comment. "Disadvantages," "impediments," etc., is all too abstract. Obviously, a legal action taking place half way around the world is an impediment that creates a disadvantage for the party who must travel to defend the action.


5. 5. If M files in California, would F have to be represented in California and would F have to be present?

A: A California court cannot force F to appear in California -- but, if the court were to determine that jurisdiction lies in California for purposes of child custody, then F would have to appear in person, or risk losing the case. I doubt that a California court would decide that the child custody case must be decided in California, given that M permitted the F and C to travel and remain in Australia. But, were a judge to decide otherwise, then F would have to appear to defend in the case.

6. F considers initiating divorce in Australia so as to minimise possible complications concerning children and to avoid having to attend Court in California (to be avoided if at all possible).

A: Seems like a good idea to me.

7. If F filed in Australia first, can M file after that in California, without reference to F’s application?

A: No. The California court would need to know about the Australia action. Failure to disclose could cause the California court to later dismiss the case.
.
In Australia it is not possible (shall check and confirm) – who files first prevents the other party filing except as a response. Is there a similar law or rule or practice in California?

A: Jurisdiction over custody, child support, property division, and divorce can be subject to different legal factors. This could cause a court to determine that it has jurisdiction to determine one or more of the issues surrounding the divorce, but not all issues. For example, the fact that the parties have never resided in Australia as married persons could mean that the Australia court would decline to make any decisions about spousal maintenance/support/alimony, and the division of any property. But, the presence of M and F in Australia could cause the court to take up the issue of custody and child support. I cannot speak to what an Australia court might rule. In California, the court would have to determine whether or not the child was present in Australia with M's consent. If yes, then that would cause the court to take jurisdiction of the custody issue, assuming that the California case were filed first. If the Australia case were filed first, then the California judge would probably try to contact the Australia judge and seek to coordinate the jurisdictional issue, with the idea that one or the other courts would dismiss the case in favor of the other -- before either case moved forward.

8. 8. Since the beginning of June 2013, when F, M and C returned to Australia and then M returned to the US after 2 weeks, M has not sent any funds to F for the upkeep of the rest of the family. Instead, M has sent an email to F stating that he would support the family only if they reside with him in the US. This position, M claims, is based on a Binding Financial Agreement though F recalls that the latter is framed to be applicable only after a divorce.

9. The Child Support Agency (CSA) in Australia has an agreement in place with its counterpart in the US, and F is considering applying to CSA to obtain child support from M, with the CSA taking up the matter with its counterpart in the US. F is mindful of the fact that such application may trigger a divorce application by M and requests comment on this.

A: F's and C's presence in Australia gives the CSA authority to seek child support from M. Since M has never resided in Australia with F and C, California law would control the actual amount of support (which is probably good for F and C, because California child support awards are among the highest in the USA). However, this would not prevent M from filing for dissolution of marriage in California. And, if M does so, then the question, once again, is whether or not California is now an inconvenient forum, requiring the court to dismiss, or whether the court decides that F is acting in bad faith and the court will maintain jurisdiction over F and C.

To be frank, a lot depends on the allegations appearing in the court pleadings, and based upon those pleadings, whether or not one court or the other finds the allegations credible. Ultimately, I believe that the principle questions will be: (1) where were the parties domiciled/resident together during marriage; (2) has C resided in Australia or California for at least six months continuously, prior to the filing of any action; (3) is C's presence in Australia due to the consent of M, or did F refuse to return to California with M, thereby restraining the child in Australia without M's consent.

I realize that F is likely to answer these questions quite differently than will M. It will be up to the court in each jurisdiction to try to determine who is testifying truthfully. Frequently, judges get such determinations wrong -- because it's largely a case of "he said, she said," without much objective proof. But, that's how the system works.

In short, the outcome could go either way -- there's very little means of predicting anything in advance here.

Hope this helps.

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