penguinsix
Registered User
I'm not really sure which way this thread is going, so let me address a couple of points on both issues.
Americans often need to be wary of the 35 day rule, which can drastically affect their income taxes. If a US citizen or resident is in the USA > 35 days, then there eligibility for the Foreign Earned Income and Foreign Housing credits can be eliminated, costing tens of thousands of US dollars in US taxes. It's something that some Americans need to watch out for, especially those who set foot in the US every now and then on business or a vacation or whatnot.
And with regards to travel time, our flights back to the USA are easily 24-30 hours door to door. One transfer, time to get to the airports, customs and immigration, rental cars, drive home, etc. Easily 24-30 to a place like Washington DC which doesn't have that many direct flights from HKG.
Now, as for the more distressing issue, that of child abduction, it is very VERY important to note that the US and Hong Kong are both signatories to the Hague Convention on Child Abductions. I agree with others on the ethical argument that you should not just split with the kids, and I would also advise you that from a legal standpoint you might be setting yourself up for even bigger problems.
If this is something you are considering, you should definitely speak to some professionals in the legal community before making a big mistake.
http://travel.state.gov/abduction/country/country_495.html
One of the core elements of that treaty is that child abduction cases are heard in the country of "habitual residence" of the child. Legal cases will not be handled in the courts of one country simply because one parent is in that country, or even if those children happen to have US passports. The issue is 'habitual residence'--where the kids are normally residing, and I think if you have been here for a few years (and/or if the kids were born here) the father would have a very strong case to say their habitual residence is Hong Kong.
That means if you flee with the kids, he need only file a motion to return the children to the country of their habitual residence BEFORE the issues of custody are determined. The kids will be taken from you and put back on a plane to Hong Kong for a child custody hearing, and the fact that you were willing to take them away without a clear legal right will be a huge black mark against you in the long term child custody arrangement.
http://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction
Here are some relevant bits from that:
Procedural nature
The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left-behind parent.
The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.
Wrongful removal or retention
The Convention provides that the removal or retention of a child is “wrongful” whenever:
"a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
"b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.
"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."
Habitual residence
The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.
I also found this in a law review article:
"The Convention does not define habitual residence. Instead, the Convention deliberately left habitual residenc undefined in order to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems. In doing so, the Convention sought to prevent habitual residence from acquiring an overly technical or idiosyncratic definition comparable to the notion of domicile."
more here: http://law.wustl.edu/journal/33/Winter.pdf
Americans often need to be wary of the 35 day rule, which can drastically affect their income taxes. If a US citizen or resident is in the USA > 35 days, then there eligibility for the Foreign Earned Income and Foreign Housing credits can be eliminated, costing tens of thousands of US dollars in US taxes. It's something that some Americans need to watch out for, especially those who set foot in the US every now and then on business or a vacation or whatnot.
And with regards to travel time, our flights back to the USA are easily 24-30 hours door to door. One transfer, time to get to the airports, customs and immigration, rental cars, drive home, etc. Easily 24-30 to a place like Washington DC which doesn't have that many direct flights from HKG.
Now, as for the more distressing issue, that of child abduction, it is very VERY important to note that the US and Hong Kong are both signatories to the Hague Convention on Child Abductions. I agree with others on the ethical argument that you should not just split with the kids, and I would also advise you that from a legal standpoint you might be setting yourself up for even bigger problems.
If this is something you are considering, you should definitely speak to some professionals in the legal community before making a big mistake.
http://travel.state.gov/abduction/country/country_495.html
One of the core elements of that treaty is that child abduction cases are heard in the country of "habitual residence" of the child. Legal cases will not be handled in the courts of one country simply because one parent is in that country, or even if those children happen to have US passports. The issue is 'habitual residence'--where the kids are normally residing, and I think if you have been here for a few years (and/or if the kids were born here) the father would have a very strong case to say their habitual residence is Hong Kong.
That means if you flee with the kids, he need only file a motion to return the children to the country of their habitual residence BEFORE the issues of custody are determined. The kids will be taken from you and put back on a plane to Hong Kong for a child custody hearing, and the fact that you were willing to take them away without a clear legal right will be a huge black mark against you in the long term child custody arrangement.
http://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction
Here are some relevant bits from that:
Procedural nature
The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left-behind parent.
The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.
Wrongful removal or retention
The Convention provides that the removal or retention of a child is “wrongful” whenever:
"a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
"b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.
"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."
Habitual residence
The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.
I also found this in a law review article:
"The Convention does not define habitual residence. Instead, the Convention deliberately left habitual residenc undefined in order to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems. In doing so, the Convention sought to prevent habitual residence from acquiring an overly technical or idiosyncratic definition comparable to the notion of domicile."
more here: http://law.wustl.edu/journal/33/Winter.pdf
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