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Ask Ely Your Own Question
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102496
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am an American citizen in Ecuador, living here for the better

Customer Question

I am an American citizen in Ecuador, living here for the better part of 3 years with my wife, and 2 kids 3,6yrs. We have established residence here and so have my kids. I am taking a trip to NY where I have a home. According to the Hague convention, if my wife comes with me and is therefore giving consent for the kids to come as well, if I decide I do not want to return to Ecuador, can she claim that I have detained the kids for an "unagreed" amount of time? What if I have a job prospect in Ny and no longer can afford to live in Ecuador, and do not give consent for the kids to return there? What if I feel it is not safe for me to return to Ecuador because my wife cheated on me with another man here and he has verbally threatened to kill me? My main concern is my kids and I do not want them to have to return here. All of the above are true. Would a judge make my kids return here?
Submitted: 6 years ago.
Category: Family Law
Expert:  Ely replied 6 years ago.

Welcome to JustAnswer and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

Can you please tell me how long you have been in NY? Longer than six months?
Customer: replied 6 years ago.
No, I am taking a trip to NY, haven't left yet.
Expert:  Ely replied 6 years ago.
Thank you. To clarify - what are you trying to achieve here:

Get custody of the children in NY?
Get custody of the children in Ecuador?

Or something else?
Customer: replied 6 years ago.
Sorry for the delay, custody in NY
Expert:  Ely replied 6 years ago.
According to the Uniform Child-Custody Jurisdiction and Enforcement Act and general law, the jurisdiction to custody should be in Ecuador because that is where the children live. So if you travel to NY with the children (or without) and file custody, then she can possibly dismiss the matter in NY for lack of jurisdiction.

A caveat is that the Uniform Child-Custody Jurisdiction and Enforcement Act allow jurisdiction in any court if it is an emergency. So if you claim some kind of an emergency (abuse, neglect, etc.) in your NY petition for custody, the Court may agree to hear the case, or - rather - not dismiss the case it should she ask the court to do so.

So it is not whether or not a Judge would allow the children to return here, but which Court hears the case and would you be successful? Also, if this is heard in NY, I would suggest having your children in NY at that time, because enforcing an American decree in Ecuador can be unpredictable. Either court would rule 'in the best interest of the child.'

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