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When you are of a different nationality and are considering separation, it can be all the more complicated if there is a conflict over custody of the children. This is what happened in the case of little Elise, kidnapped by her mother of Russian nationality in 2009. The parents, in the process of divorce, quarreled over custody of the girl they each obtained in their respective countries. Update on current legislation.
What are the legal rules in case of divorce?
If you are both of European nationality, the “Rome III” regulation has applied since June 21, 2012. This new text now allows binational couples to choose which national law will apply in the event of divorce. And this even before getting married. Until now, the divorcing couple could decide to initiate proceedings in the country of their choice. Result: it happened that a badly caring spouse rushed towards the territory that best protects his interests. The rest, we can imagine: family breakdown, the interests of children put at risk …
Note that France has signed bilateral agreements on divorce and separation with countries other than those of the EU, such as the Maghreb countries. But be careful, even in the presence of agreements, if you are in conflict over child custody, the problem can be thorny in a country whose legal system is very different, or even opposed to ours (polygamy, non-existence of parental authority of the mother…). And the difficulty may be even greater if one of you has the nationality of a country with which there is no convention like Russia.
What if one of the parents does not respect the judge’s decision?
Several scenarios can arise. The parent who has obtained the right of custody refuses to let the child see the other parent or, conversely, the one who has the right of accommodation prevents the return of the child on the date fixed to the one who has custody of it. In both situations, it is recommended to contact the international civil and commercial assistance office of the Ministry of Justice (tel .: 01 44 77 61 05 or www.enlevement-parental.justice.gouv.fr) whose role is to promote administrative and legal cooperation between countries. In the most serious cases, especially when the child is missing, the first thing to do is to file a complaint with the police so that an investigation can be opened. If the disappearance takes place in one of the signatory states of the Hague Convention, the latter will make it possible to implement the means of coordination between the countries concerned to locate the child and allow his return to his country of origin. In the other countries where France has set up cooperation rules (Togo, Niger, Quebec, etc.), bilateral conventions will come into play.
Note: Whatever the problem you encounter, it is advisable to contact a lawyer who will assist you in the various often complex legal procedures.
What sanction does the offending parent incur?
In France, the penal code punishes offenses against the exercise of parental authority. A parent who does not respect the mode of custody commits an offense of non-representation with up to one year of imprisonment and a fine of 15 euros. If he improperly detains the child outside the national territory, he faces up to three years in prison and a fine of 000 euros.
Mediation to find an agreement
There is an international family mediation system to help binational parents to reach an agreement on the return of a child, but also to re-establish links between the child and the parent with whom he does not reside. To make a request, you must send a letter to the International Civil and Commercial Assistance Bureau, 13, place Vendôme, 75042 Paris CEDEX 01. Tel. : 01 44 77 25 30.