Wife taking the kids, what are my rights as the father?

My wife and i have had an enormous arguement over my emotional cheating....namely, having an affair without actually touching. It involves so much lying and me being an absolute selfish sod.

So she now threatens to take the kids and never come back. Do I have any rights as the father of the children? Can she just up and leave Hong Kong with them? Is there anything "legally" I can do to keep her from doing that? We both work fulltime. Where do I stand as a father.....do women always get the upper hand in circumstances like this? This is not a philosophical arguement about lying or emotional cheating, its about my rights.....do I have any?

Assuming that you and your wife don't want to try and work through your issues ... I would be off to see a family lawyer as soon as possible.


I am not certain but would have thought that any divorce/custody issues would be resolved under the courts of where you were married. I am not a family lawyer but recall from my law school days (in a country other than HK) that you cannot ordinarily take the children out of the country away from the other spouse unless there are good reasons for doing so - eg: the spouse with custody has been offered a job somewhere else. Of course, it depends on what custody arrangements are agreed by you/set down by the court as to who has primary custody and who has visitation rights.

redtag,


As father you have equal rights as the mother. Now is the time to start making a list of all the poor mothering she did, such as the time she was done for drunk driving.


Where you file for divorce is a touchy issue, because different countries' laws will favor one side or the other. If you are both ordinarily resident in HK, then you should file in HK. However, if you have substantive ties with another country, that might be the appropriate place. Get proper legal advice.


Assuming the children have passports, there is nothing to stop either parent leaving the country with them. Residence after divorce, e.g. should they stay in Hong Kong, or go back to your home country if one partner returns and the other does not?, is a matter for the court.


Good Luck

Maybe get some help from a counselor, together. You are married... from good and bad situations, the best would be to try to solve your problem first.

You have equal rights with your wife, and she is not allowed to leave with the kids in your back (you could sue her for abandonning her house).

Also, not sure minors can go out the country with only one parent without the agreement of the other one.

i don' think it is fair for any one side to threaten the other. but if you are worried, then take possession of the passports/id cards and try to work it out.

Well I think you may want to think more about the rights of your kids than either the rights of you or your wife. Your kids have a right to a safe and secure home, have a right to a stable life and have a right to an ongoing relationship with BOTH parents if the kids and the kids alone want that to happen.


If what you have done has damaged the ties with your kids then you may need time to repair that and that can happen even if you dont have any relationship with your wife but think hard as the biggest damage can be done by two parents fighting in the courts and bringing the kids intio that fight.


Try hard to establish a way forward with your wife - you say she has threatened but think about it she is hurt and feels abandoned by you - she wants to get back at you and while she is only threatening then there is still a chance and you have to put the effort in - it is so strange that many couples put a lot of emotion and effort into squabbling etc etc when in fact the same energy could make their marriage really great. Talk to her and try - dont lie or be stubborn or make demands - you are in no position for that - acknowledge your mistakes and convince her that you want her - I did not see that in your post at all if I had I would have started the reply different.


Please whatever happens dont let your kids suffer and dont fight over what you think are your rights - if you have to fight at all fight to preserve their rights.

Philvirg - could you please explain what you mean by 'sue her for abandoning her house'?


I can confirm that in ordinary circumstances, you don't need the other spouse's consent to travel with children by yourself. If you are in the middle of a court battle and petitions have been lodged and immigration notified of a potential flight risk then things may be different.


Agree with the above that it is better for all concerned (esp the kids) if you and your wife can try and sort things out.

Starbucks2 :

In my country, the one who leaves the house before the divorce, without notification or agreement from both spouses is entitled to be sued for abandonning the home. And you have no right to take the kids without agreement neither, you could get into trouble.

Anyway I agree with Bastille.

starbucks

same in my home country.

every mom with marriage problems is strongly advised not to leave the family house like this because of 'home abandon' indeed - and which would go against the mother in case of divorce and children's custody arrangement.

Whoa - STOP right there. If either parent removes a child from one jurisdiction to another without a) the express written consent of the other parent or b) leave of the Court for a period of more than 28 days then that parent becomes guilty of the very serious crinme of Internatinol Parental Child Abduction. This is covered by the Hague Convention and is regrettably fairly common in HK. A special unit exists at one of the Police stations in HK to deal with this matter.


If the child is removed to another member country of the Hague Convention the abducting parent will almost certainly be arrested and legal proceedings commenced to return the child. This is a very messy business and very disturbing for the child(ren) and left behind parent and can be enormously expensive. In HK child abduction is a civil offense but in many European countries and the US it is a criminal offense. Once the child is returned to the original jurisdiction the abducting parent will not be able to remove the child(ren) without leave of the Court.


My advice to you is to a) obtain the children's passports see a solictor immediately to apply for a Prohibitive Steps Order (effectively a Port Alert) to prevent the children being removed from the juridiction of HK.


Once the children are removed from HK many other issues will follow. Trust me, you do NOT want to go down this road.


If and when you do divorce you and your spouse will have to sort out and agree a Statement of Arrangements for the children. Do NOT let your spouse abuse the system by abducting your children. If you do nothing else, get their passports and see a solicitor immediately. Then sort eveything else out.

Thanks for the clarification. We certainly don't have that in my home country. I wonder how it could be held against the mother in a custody hearing if she has taken the kids with her. Understand if she leaves the house and the kids behind - that would not be construed well in a custody dispute. To be honest, I can understand if both partners are in a foreign country that if there is a break down in the relationship, one of them may want to return to their home country with the children to have the support of their family in a tough emotional time. It just doesn't seem fair on the remaining spouse unless the reason the family are leaving is abuse (not the case here). The reason I was suggesting that the OP get legal advice fast is because it may not be something the HK courts can deal with and, depending on where the dispute is handled, it may consider fault issues as to who has brought about the demise of the marriage (certainly relevant in a lot of countries in divorce hearings but unsure about custody).


On the point about travelling alone with children, does this mean that immigration in your home countries require the spouse travelling with kids (eg: on a holiday) to have a letter of consent from the other spouse??

>>It just doesn't seem fair on the remaining spouse unless the reason the family are leaving is abuse (not the case here)<<


Even if there was abuse it is no defense to international parental child abduction because the abducting parent (in a jurisdiction like HK) would be expected to use the Police and Court service to apply for the necessary orders such as restraining orders and ouster orders. There is no defense to international child abduction other than that the left behind parent consented to the removal of the child. The Hague Convention is very clear on this.


The Hague Convention on international parental child abduction originally came about because it was usually fathers from Middle Eastern countries who had married Western women in Europe and North America but then abducted the child(ren) back to their home country when the marriage broke down. However, these days with international job postings in places like HK it is just as likely to occur when mothers return to their home countries when a marriage breaks down. Most times it occurs through ignorance in that the abductor does not know they have broken the law. Ignorance of the law however is not a defense.


As for your other question >> On the point about travelling alone with children, does this mean that immigration in your home countries require the spouse travelling with kids (eg: on a holiday) to have a letter of consent from the other spouse??<<


No - but if you RETAIN a child overseas for more than 28 days you will need to prove that the other parent consented not only to their removal but to their CONTINUED stay overseas. If the other parent originally consented to the removal say for instance to a holiday overseas which is a common enough occurence, but did not consent to their continuing stay beyond a 28 day period then the removing parent could be charged with failure to return a child under the Hague Convention IF the left behind parent decided to bring a case.


Such cases are very messy with the involvement of Interpol, local police and the legal systems of both countries. Cases move with lightning speed and court hearings in Family Court systems are prioritised. Cases are usually emotionally charged and can become worse if the abducting parent goes to ground with the child(ren) which often happens when he/she becomes aware that a crime has been committed. Very often the abducting parent is ordered to return to the jurisdiction they have left by a Court Order. These orders are mirrored in the country to which they must return to. There is therefore co-operation under the terms of the Hague Convention between the Central authorities of both countries. Serious problems can occur, however, when one of the countries is not a signatory to the Hague Convention.


If a separating couple wish to divorce they can divorce in any jurisdiction in which

they have a connection (HK or their own). However, if one partner wishes to permanently remove the children he/she will need either the express written consent of the other parent (and ideally have it ratified within a court stamped Consent Order or seek the leave of the Court in the jurisdiction in which the children currently reside.


I'm afraid whatever the circumstances, international parental child abduction is wrong and highly distressing for all concerned.

There was a good article in The Economist magazine earlier this year about separation/divorce and international parental child abduction. The article notes that parental child abduction has increased dramatically over recent years.


http://www.economist.com/displaystory.cfm?story_id=13057235


I am glad to see from Cara's post above that Canada at least appears to have taken a sensible stance. Hong Kong is a signatory to the 1980 Hague Convention on international parental child abduction but China is not.

Get to a family lawyer asap. Your wife is obviously feeling hurt and betrayed. And, as they say, "Hell hath no fury than a woman scorned". There is no more effective way to wreak revenge on a spouse than to use the children. I saw this countless times when I practised divorce law in England. It used to disgust me that a parent could so callously inflict harm on a child by using it as an instrument of punishment: true child cruelty, in my view. But then maybe it is a lot of hot air at present. Think of the practicalities: is she able, at the drop of a hat, to up-sticks and leave with the children? Does she have the money to do this? Where would she live? Was this a threat made in the heat of an argument? Has she threatened this more than once? Does she have the wherewithall to carry out her threat? Could she really be so vindictive as to rob the children of their right to see their father; to remove the children from their home, friends, school? (In so many cases, the answer to this one is a definite "yes" - some people will stop at nothing). In the absence of compelling evidence to substantiate your fear that she may suddenly disappear with the children, maybe this is more a case of getting marriage counselling. Looks like you have an awful lot of humble pie to eat. In the meantime, simply as a precautionary measure, it seems sensible to get hold of the passports and ID cards althought this may merely serve to inflame the situation. Then again, better safe than sorry, eh....?

When something devastating like this happens while in another country, we naturally crave the support and comfort of our family and familiarity of our surroundings. While your wife is obviously making threats, she is trying to hurt you as you have hurt her. What needs to happen now is whatever is best for your children first, then your wife, and sorry, but you come third right now. This may mean being at home with family. Providing your wife can be rational, you need to sit down and talk about short term logisitics.

As Cara mentioned, everytime I take our daughter to Canada (alot), I have been asked for the letter. 3 weeks ago my husband took our daughter without me and he was asked for it.


We get a notarized letter at the local post office (Commisioner of Oathes) for free

I have travelled to Italy, Australia and New Zealand with my child alone and never been questioned about being there by myself with him. Never heard of a letter being required so maybe only something some countries require (eg: Canada). Wonder if you are required to prove you are a widow or a solo parent as well if that is the case ...


SB2

I think Canada's stance is to be commended and more countries should follow. However, do bear in mind that the procedure to return abducted children from Hague Convention signatory countries to the country of habitual residence is relatively straightforward amd that an abductiing parent will usually be compelled to return the child.


However, the real problems begin when the child is abducted to a country which is not a Hague Convention signatory. These cases are extremely messy and often very expensive with endless adjournments. In Asia, the Philippines in particular and even Japan have seen some traumatic cases although Japan has in a remarkable volte-face after mounting international pressure decided to sign up to the treaty by as early as 2010.


IMHO, parental child abduction is child abuse. It is one of the most vicious and spiteful acts any human being can inflict on a) the children and b) the left behind parent. It is a severe form of parental alientation especially where the abductor continues after the abduction to deny the left behind parent contact with their child(ren).

"Wonder if you are required to prove you are a widow or a solo parent as well if that is the case ..."


In the case of Canada, then it does recommend that if you are a widow(er) to bring along the spouse's death certificate when travelling with your child.


It all depends on what country you are visiting - that's why it's often advised that you check with that country's embassy/consulate ahead of time if you are travelling alone with children to see what procedures are observed there. As Dr. Strangelove says, child abduction is a very serious crime and the extra caution is indeed something to be commended (even if it does seem tiresome to the average, law-abiding citizen.)

Thank you for the incredibly informative responses. Obviously my first approach is to try and work things out with my partner, that goes without saying. The good news is that is my wife hasn't left the country with the kids and we are looking at ways to make our marriage better. We are seeking counselling as a way forward. Thank you for all the reassurances that just because I'm a father doesn;t mean i dont have any rights to my children. The stereotype obviously exists for a reason. The advice above has been an important stepping stone to relieving some of the anxiety faced when angry partners threaten to do things you feel you have no control over. Thank you all.

Hi Redtag,


I'm sorry to read about your family problem.


You've had some good answers already. You can get a solicitor to arrange a "stop order" to alert the Immigration Department. Interesting discussion about the consequences of kidnapping, but a stop order is a quick and easy way to prevent all that.


What are your rights? Your rights are insignificant beside the interests of the children. The court will decide the matter in the best interests of the kids, and your rights are of little importance.


My advice is to work things out! Glad to see you're getting some help with that. Good luck :)

I agree that a Prohibitive Steps Order is the best way forward in your situation.


I am separated from my children by 6000 miles. One thing I want to remind you about is that if your wife were to legally remove the children out of HK following either your written consent or leave of the HK Family Court, how are you going to maintain adequate contact with your children? Easier said then done when one parent removes a child. Distance and time differences make the job of co-parenting extremely hard and you may have to relocate back to where they are to maintain your role as co-parent.


Hopefully you and your spouse will be able to patch things up. However, if you do decide to part company do be mindful that in divorce the usual issues such as who gets the house/assets etc will pale into insignificance if you cannot see your children. It will drive you crazy and won't be good for your children either and will leave you railing against the whole system. You will discover that you have a lot of financial responsibilities but few rights. Don't let that happen.

Can I add my opinion? Speaking as someone who has been in your situation, I would say that you are heading in the right direction with lots of communication with your wife and counselling.


If you put in place a Prohibitive Steps Order you may risk your marriage even more. To your wife, that would be a very extreme move that may make her think that all you care about is the children and not her. I feel that if she was going to leave and take the children, she would have done this already. Keep all channels of communication open and work on it. It sounds like you're not ready to call time on your marriage and neither is she yet. Open, honest communication is the key I think and keep things nice and calm.


I wish you and your family all the luck in the world.

It all depends. Every case is different. I came home one day and found my wife and children gone. Divorce was being discussed and both parties had seen lawyers in HK. I had been advised to apply for a Prohibitive Steps Order but stupidly never took the lawyer's advice. What ensued was without a doubt the worst period of my life with 5 months of legal wrangling and a huge bill. The case was settled but more than two years later I have only seen my children twice for a total of 4 days because the mother frustrates contact at very opportunity.


This may of course have been an extreme case but if there is the slightest doubt that one parent will abduct a child across an international border I think most competent courts will issue a Prohibitive Steps Order. Child abduction whether knowingly or unknowingly is fairly common in HK and HK Police deal with several cases every year.


Failing that, if a Steps Order is too inflammatory, I would recommend the OP covertly takes the children's passports and lodges them with a solicitor.

A Related Question to the folks here please on Laws of China.....If you are married under the laws of your home Country,is it neccessary to also file for divorce in the same? or can you file for Divorce in the Chinese Mainland.