Managing International Issues in Georgia Family Matters
Divorces are difficult enough, but they can be further complicated when issues involving international law come into play that affect the division of marital assets and child custody.
The complexity that accompanies divorces with cross-border issues means that it’s essential to find a lawyer who can bring experience in these types of cases and be an effective advocate for you.
In divorce, alimony, child support, child custody and other family law cases, many counties in Georgia have a standing order that goes into effect while a matter is pending. The standing order prevents the parties from dissipating or transferring marital assets and removing the children from the jurisdiction of the court. The order does not mean you cannot go on vacation with your children, but you will not be able to move out of state absent a court order and you will most likely need your spouse’s permission to travel internationally while the family law action is pending.
Financial Issues and International Law
One of the first steps a lawyer will take in a family law matter with international issues is to determine what financial assets are located outside of the United States and the best way to go about getting information regarding those assets. Your family law attorney will need to retain an attorney in the foreign country to help obtain the relevant documents and information and perhaps to serve subpoenas to obtain that information. Once foreign assets are found, you will need to decide if it is important to obtain a court order directing that the assets be returned to the United States. Some assets, such as retirement accounts, should not be liquidated and returned. Instead they should be divided by court order. Bank and investment accounts may be returned to a U.S. financial institution during the pendency of the action and whether they are returned should be addressed. If the parties have a bank or investment account which holds over $10,000.00, parties should have been filing a FBAR, a Report of Foreign Bank and Financial Accounts form, with their tax returns each year. Reviewing the parties’ tax return is a good place to start looking for foreign assets.
Retirement accounts can involve foreign law if a party has ever:
- lived in a foreign country, whether or not working for a U.S. company
- worked in a foreign country for a foreign based company
- worked for a company in the United States that is based in a foreign country
In most divorces one party is seeking a portion of the other spouse’s marital retirement benefits and foreign law may govern those retirement assets if one of the above situations has occurred.
To determine whether foreign laws govern a spouse’s retirement assets, your attorney will need to review the retirement plan’s statement of benefits. Sometimes it is difficult to obtain the statement of benefits or the statement of benefits is not clear, in which case someone will need to contact the plan administrator for the foreign retirement plan to determine if foreign law may apply.
Child Custody and International Travel
The biggest conflict often occurs when one parent wants to take the children overseas and the other party objects. This is an issue that has been the subject of several court cases in Georgia. Sometimes there are disputes about obtaining the children’s passport required for international travel.
When it comes to obtaining passports for children, federal law takes priority over state law. Federal law requires both parents to sign the application and to apply in person with their children for their children’s passport, so long as their children are under the age of 16. However, one parent can solely apply for a passport for his / her minor children if there is a court order in place granting:
- sole legal custody to one parent with the court order authorizing travel and granting one parent sole authority to apply for the passport, or
- joint legal custody, with the court order authorizing travel and granting one parent sole authority to apply for the passport
In these circumstances, one parent can apply solely without the necessity of the other parent being on the application consenting to the passport or appearing before the passport authority requesting a passport.
The most common scenario where international travel is an issue is when one of the parents has extended family who live outside the United States and they want the right to travel abroad. Unless the Parenting Plan prohibits foreign travel, there is no prohibition on international travel post-divorce. The next most common situation is where a parent works for an international company or takes a new job with an international company and must relocate to another country after the divorce. In that situation a new Parenting Plan must be obtained by negotiation between the parties, which is then made a new court order, or by the court, after a hearing, ordering a new Parenting Plan.
As stated above, if the case is still pending, then there will need to be a court order or an agreement between the parties for international travel to take place.
Courts consider several important factors when it comes to permitting the removal of children from the United States, including:
- risk of abduction
- potential harm to the children if abducted
- enforcement of foreign divorce and custody judgments by the jurisdictions the traveling parent will be in
- obstacles to locating and recovering the children if abduction occurs
In the 2014 case Sahibzada v. Sahibzada, the Georgia Supreme Court affirmed a trial court’s restrictions on two children’s international travel with their father and underscored the importance of requiring consent from both parents. The father was a native of Pakistan with dual Pakistani and American citizenship and his wife was American of Pakistani descent. Among the reasons the court ruled for the mother and prohibited international travel was that the father withdrew significant amounts of money from U.S. financial institutions and transferred the funds outside the U.S. prior to asking to take the children to Pakistan. In addition, as a woman, the mother “stated that she would have no custodial rights in Pakistan once her sons reached the age of eight.” Further, Pakistan was not a signatory country to the Hague Convention at that time.
In some instances, a parent can obtain a court order to require a bond be posted before the child is removed from the state in order to guarantee the child’s safe return to Georgia. In other circumstances, a court can order that neither party can travel with the children to a country that has not signed the Hague Convention on the Civil Aspects of International Child Abduction, which is what the court in the Sahibzada case did.
When a parent violates the court order on the children’s travel restrictions, the nonoffending parent can file for an emergency order requiring the return of the children and ask that the parent be held in contempt of court. Penalties include an award of attorney’s fees, fines or even jail time.
For a parent in the military, Georgia law requires that the parenting plan provide for custody in the event of overseas deployment to address what happens regarding temporary custody. Georgia law prohibits a final order being entered on custody during the term of the deployment.
For more information, Boyd Collar Nolen Tuggle & Roddenbery welcomes the opportunity to learn about your legal needs and provide more detail on what services we offer. For more information about how Boyd Collar Nolen Tuggle & Roddenbery can help you, please contact us at 770.626.7226.