In 1991 moviegoers watched Sally Field portray Betty Mahmoody in Not Without My Daughter. In real life, Mahmoody was trapped by her Iranian husband in Iran, and she could not leave with her American-born daughter. The Swiss embassy helped Mahmoody smuggle her daughter out.
How horrible, people said. How could a man force his wife and child to stay in Iran when they held US passports? How wonderful of Switzerland to help this woman and her daughter!
If that is wonderful, you have to ask yourself why, in 2019, when I asked the Swiss government to let me take my American-born children back to the United States, I was informed that if I attempted to do so, I would be arrested and charged with kidnapping.
There’s a treaty you probably don’t know about unless you’ve been involved in an international custody dispute. It’s called the Hague Convention on the Civil Aspects of International Child Abduction.
This is a treaty that, in theory, is a good idea. It prevents one parent from taking the children out of one country and moving them to another without the other parent’s permission. This is great! Both parents should be involved in that decision, and now you know it exists, and you can smile and say, “good job, international community! Way to keep crazy parents from kidnapping their children!”
But Iran is not a member of this treaty, so once Mahmoody got her daughter out, there was no international mechanism to force her back. Switzerland and the US are both members, so if I did run back to the states with my minor children, I would have to send them back, and I could end up in jail for kidnapping.
As I said, this is generally a good thing. My soon-to-be ex-husband and I are divorcing, but he’s still the Offsprings’ father. And so, for right now, I’m using my improv skills to yes and the heck out of life. I can’t take my kids back to the US to live, so I’m having fun while I’m here. Offspring #2 is 14, so I can decide whether to stay here or go back to the states in four years, and the kids can make their own decisions.
So why am I writing about this? For two reasons:
I had no idea a country could force non-citizens to stay
The thought of being stuck in Switzerland never crossed my mind when I agreed to quit my corporate job, pack up and move here. I always figured I could go back anytime, and the children, as US citizens, would, of course, be able to come back with me. I didn’t realize that by consenting to bring my children here, I was consenting to keep them here until either their father and I both agreed to let them go back to the states, or they turned 18,
When I bring this up whenever people ask me for tips on ex-pat life, I’m told I’m negative! Yes, I am. I had no idea, but I’ll do my best to make sure other people contemplating international moves understand
The Hague Convention allows continued abuse.
Here’s the biggest problem with the Hague Convention: while the children can be forced to stay based on one parent’s decision, it doesn’t require the country they live in to grant a work permit to the other parent. In my case, I have permanent residency status (the Swiss equivalent of a Green Card), so I’m totally good. I can work, own a business, you name it. I’m good.
But not all countries give trailing spouses work permits. And the treaty doesn’t require that they do. So if you follow your spouse (mostly women) and then want to take your kids home, your spouse (or partner–you don’t have to be married for this to kick in), the other parent can say no. The kids have to stay, but he (and usually he) is under no special obligation to support you, and the country doesn’t have to permit you to work. This can result in mothers being unemployed, living on friends’ couches, and being denied custody of their children because they don’t have a proper home for them. But they can’t have a proper home because it’s not legal to work.
Even abusive parents can force the children to stay–even if they don’t have shared custody and sometimes even if they leave the country. The Hague Convention is based on Habitual Residence, so if the kids have been there for six months or more and dad says he wants them to stay, they stay–even if Dad wants to run off to another place or doesn’t want any contact with the children.
It can cost thousands of dollars in court fees to get permission, even to take the children to their home country to visit relatives, and that’s not guaranteed.
The Hague is annoying because I can’t do what I want to, but I understand it. The children have two parents. But my STBX doesn’t object to trips to the US to visit family; I have a job and many friends. I’m fine. I’m happy. I may stay here long after the youngest turns 18. Who knows?
But not every stuck woman is.
At a minimum, the convention needs to be updated with the following things
Every stuck parent should have the right to work or the right to be fully supported by the other parent
Parents who choose not to see their children should not have a say in where the children live
An abuse conviction should immediately allow the other parent to take the children and leave the country
Every child should have the right to visit their relatives in their home countries.
These small changes would make a massive difference in the lives of stuck parents and their children.