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Old 21.03.2017, 09:19
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Divorce and children back to home country

Hi Forum


After 4 years in Switzerland, my wife wants to divorce and I need some help. We both are coming from Spain and we have a B permit (Zurich). She is not working here and does not want to, she only wants to go back to Spain to work there and take the children with her. The children are doing fine here and are well adapted and I want to remain with them. It looks like we will not agree on this point and we will need to fight for their custody.

Do I have any chance to get the custody here? Probably she will file the divorce in Spain, can I go the the Swiss court to claim for the custody? Do I have any chance to get it?

Any help is welcome.
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Old 21.03.2017, 10:19
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Re: Divorce and children back to home country

How old are the children?
Are they in school?
Have you engaged a lawyer?
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Old 21.03.2017, 10:24
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Re: Divorce and children back to home country

Hi Alonso,

The forum is great for more general information, but your matter requires legal expertise. An hour with a divorce attorney should give you a much better perspective on what your options are and how much it will cost.

Based on personal experience in the USA, sadly, I can tell you that a divorce where there are disagreements can get VERY expensive real fast. Swiss lawyers are as expensive as their US counterparts and you and your wife will each be represented by an attorney - i.e. paying 2 lawyers for every hour.

My advice, for whatever that is worth, is for you to schedule a review of your situation with a divorce attorney. Go to that meeting prepared with what you want to get out of the divorce versus what your wife wants out of the divorce and get a sense from the attorney as to what is possible in Switzerland. Also, if your wife intends to file in Spain, schedule a call with a divorce attorney in Spain and get a sense of the guidelines there.

Divorce is an incredibly emotional time for all parties. The longer it goes, the more emotional it becomes. If you approach it from an analytical perspective, get the facts and can sit down with your wife and discuss the options in a business manner you will hopefully reach an agreement quickly. Otherwise you are looking at 20k+ legal bills and an outcome that will not pleased either of the parties.

Don't know any divorce attorneys in Zurich, but we have worked with the attorney below on other matters and have been quite happy with him. Give him a shout and ask him for a recommendation of a good divorce attorney. Don't think he will refuse to give you such recommendation.

Best of luck to you,
George

Attorney contact:
TervelStoyanov
MLaw, LL.M., CAS Commodity Professional, Attorney at Law


Walder Wyss Ltd. | www.walderwyss.com
Zurich | Basel | Berne | Lugano
Seefeldstrasse 123, P.O. Box 1236, 8034 Zurich, Switzerland
Phone direct: +41 58 658 55 74 |Phone: +41 58 658 58 58 | Fax: +41 58 658 59 59

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Old 21.03.2017, 11:40
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Re: Divorce and children back to home country

Thanks for the replies

I know it will be hard and expensive. I did not engeged any lawyer (yet) but I need I will need to do so. My wife plan is to leave the country after the school year ends (July). I want to know what are my chances as I heard the sole custody usually goes to the mother. In this case both girls (12 and 9) are registered in Switzerland, attending to swiss school and even getting high qualifications. Can they leave Switzerland without my consent?
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Old 21.03.2017, 14:39
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Re: Divorce and children back to home country

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Can they leave Switzerland without my consent?
No.

More reason to see a lawyer ASAP.

Tom
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Old 21.03.2017, 14:59
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Re: Divorce and children back to home country

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Can they leave Switzerland without my consent?
Do you mean legally or physically? Hard to see how you could stop them travelling if your wife decided to.

See a lawyer and ensure the ground rules are in place. Then if something is done without your agreement you have some backing, but also if they want to e.g. visit grandparents, you can allow that in a clearly defined way and not get more division.
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Old 21.03.2017, 15:14
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Re: Divorce and children back to home country

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Do you mean legally or physically? Hard to see how you could stop them travelling if your wife decided to.
Are you serious? Of course can he, as the legal father and currently having custody, stop his kids from traveling if there is a good reason to believe that the wife wouldn't bring them back...
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Old 21.03.2017, 15:21
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Re: Divorce and children back to home country

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Are you serious? Of course can he, as the legal father and currently having custody, stop his kids from traveling if there is a good reason to believe that the wife wouldn't bring them back...
He doesn't have sole custody of the kids. His wife could turn up at the airport this afternoon and fly out with them, nothing to stop her and nothing illegal about it.

I have flown out of the country with my daughter and without my wife on several occasions and never with any questions.
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Old 21.03.2017, 15:26
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Re: Divorce and children back to home country

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He doesn't have sole custody of the kids. His wife could turn up at the airport this afternoon and fly out with them, nothing to stop her and nothing illegal about it.

I have flown out of the country with my daughter and without my wife on several occasions and never with any questions.
Even with an APB out to the effect that the children should not be allowed to leave the country, if she takes the train or car, then the chances of her being stopped are practically zero.
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Old 21.03.2017, 15:59
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Re: Divorce and children back to home country

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He doesn't have sole custody of the kids. His wife could turn up at the airport this afternoon and fly out with them, nothing to stop her and nothing illegal about it.

I have flown out of the country with my daughter and without my wife on several occasions and never with any questions.
Without written permission from the other parent, even if married and living together, legally they can stop you from taking them out of the country, and while for many years they let it slide, they are starting to crack down, as the US and Canada have been doing for decades.

https://www.gov.uk/permission-take-child-abroad

Tom
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Old 21.03.2017, 16:26
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Re: Divorce and children back to home country

What Tom said.. she can't permanently take your kids to another country without your permission (well, she could.. but that would be abduction) or a Swiss court ruling that the kids are better off in another country (again.. she would have to put forward a very strong case). This was a remote possibility in our case.. which thankfully never happened. But I was assured that it was covered by the 'Brussels II' agreement (which Switzerland applies)

In any case you should get legal advice as soon as possible.
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Old 21.03.2017, 17:07
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Re: Divorce and children back to home country

Where do the kids want to live?
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Old 21.03.2017, 18:30
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Re: Divorce and children back to home country

Also, father's do get custody here, even sometimes when the ex-wife just wants to move to a canton with a different language (that the child doesn't speak), as it could be against the best interests of the child.

Tom
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Old 21.03.2017, 19:40
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Re: Divorce and children back to home country

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Without written permission from the other parent, even if married and living together, legally they can stop you from taking them out of the country, and while for many years they let it slide, they are starting to crack down, as the US and Canada have been doing for decades.

https://www.gov.uk/permission-take-child-abroad

Tom
Yes, it is the law and they can, but generally they don't. In reality if she had gone to the airport with the kids this afternoon, would they stop her or not? I would more or less guarantee that she would be ok taking them out.
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Old 21.03.2017, 21:19
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Re: Divorce and children back to home country

Deposit the kids passports with the lawyer or similar person?
Only returnable with permission of both sides?

I have no experience, just an idea.. Might at least prevent air travel.

But yes, both me and wife have travelled individually with the children many many times.. no questions in CH or in the UK, either direction. The youngest usually gets a second glance because she's 4 and a half now and her passport photo was taken at approx 4 weeks old sound asleep
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Old 21.03.2017, 21:24
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Re: Divorce and children back to home country

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Yes, it is the law and they can, but generally they don't. In reality if she had gone to the airport with the kids this afternoon, would they stop her or not? I would more or less guarantee that she would be ok taking them out.
Yes, and I can do 270 on a Swiss highway.

Still illegal.

Tom
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Old 21.03.2017, 21:58
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Re: Divorce and children back to home country

I don t know if it helps but a friend of mine has a similar experience. She divorced recently and according to a new Swiss law both parents got joint custody of the kid. The mother wanted to get back to her country together with the kid - but the father was disagree. Nevertheless, mother proved that all the time during their marriage, they planned to go back to their home country before kid starts to school - And she made her career plan according to that, and applied jobs in her hometown. (Also she got accepted from one of that applications. )
In the end she managed to take the kid with her. She is taking the kid once a month to Switzerland, and father visits once a month too. So they catch up every two weeks.
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Old 21.03.2017, 23:07
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Re: Divorce and children back to home country

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Hi Forum


After 4 years in Switzerland, my wife wants to divorce and I need some help. We both are coming from Spain and we have a B permit (Zurich). She is not working here and does not want to, she only wants to go back to Spain to work there and take the children with her. The children are doing fine here and are well adapted and I want to remain with them. It looks like we will not agree on this point and we will need to fight for their custody.

Do I have any chance to get the custody here? Probably she will file the divorce in Spain, can I go the the Swiss court to claim for the custody? Do I have any chance to get it?

Any help is welcome.
Before fighting in court....
What do your children want (that brings the subject of how old they are)? (apart from you and the your wife not to divorce, of course).. Where and with whom to live if they had to make a choice?
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Old 21.03.2017, 23:50
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Re: Divorce and children back to home country

In Switzerland, it is no longer considered an exception for both parents to share custody after a divorce. This is now the legal norm.

It is not automatically considered best for the child to reside with the mother. That used to be regarded as the "normal" or "only logical" option, but this way of thinking has been removed from the legal system. Now, parents are regarded as equal in their relationship with their children.

The law specifies that priority - in all decisions concerning the child - must be placed on setting the child's interests first.

Wherever there is a dispute about custody, then those arguments which demonstrate that it would be better for the CHILD are the ones which must influence the final decision to place the child with the mother or the father.

https://www.ch.ch/en/divorce-parental-authority/

If the children are integrated in life here in Switzerland (school, language, friends) and think of their parents' home countries as foreign (where Granny lives, a place we go on holiday, a place where they speak that other language, where my parents have cousins but I have no friends of my own), then it can be regarded as good for the child to continue living in Switzerland. However, the parent who remains here would have to demonstrate that the children would be well cared-for, which is harder to do if that parent is employed and has thus far been relying on the "free" child-care provided by the other, non-working parent. That seems to be your case. As others have said, a lot depends on the ages of the children, and whether they are old enough to have and to articulate an opinion on the matter.

Here is a thread about an international couple where one party wanted to leave and the other did not want them to go.
https://www.englishforum.ch/family-m...ion-abuse.html

If the laws of your wife's home country are sexist and automatically assign full custody to the mother, and few rights to the child to have access to the father, then letting the mother take the children "home" is likely to be tantamount to accepting that they will live with her, there. You will therefore need to think very hard about whether to try to stop the proposed journey out of Switzerland.
See, for example: http://www.familien-konflikte.ch/de/node/766

Definitely seek legal advice, the sooner the better. Besides the issue of a separation or divorce, and custody, you will need to find out about the children's permits and citizenships in both countries (and to what extent this permission is legally dependent upon the permit status of their mother and of their father). If the children are foreign, and currently allowed to be here dependent upon your permit to live in Switzerland, and then they leave... would they be able to return, if need be? Have they been in Switzerland long enough to be naturalised? If not, would your wife be willing to stay here long enough for the children to gain Swiss citizenship? If so, that would give them the option of returning later, and time in their lives they would want to do so. Aim for you and the children to have the same citizenships (plural).

It is worth considering how much money, time, effort and energy you and your wife should spend on the conflict (lawyers' fees, letters, reproaches, arguments), and how much on the benefit of the children (agreements about visits, cooperation to enable both adults to earn, discussions about schooling, savings for tertiary education, flights to see one another).

In all cases, the children have a legal RIGHT to access to the relationship with both parents, and the parents both have a legal RESPONSIBILITY to assert their children's rights. Taken together, this means that the father has a DUTY to enable the children to see their mother, and vice versa. This, however, is under Swiss law. That may or may not be seen to apply if the mother and children no longer have their legal domicile in Switzerland.

It can also be worth knowing what the inlaws and friends (in both countries) think, and to what extent they would naturally help or hinder the transfer of the children to visit the other parent. If the family "back home" is likely to swallow up the children and hold them in a metaphorical fortress, then it can be much more important to ensure that they stay here. If, on the other hand, a bunch of cousins, grandparents and friends (in both countries) can be counted upon to continue to welcome the ex-spouse to family events and to sleep over, then maintaining a long-distance relationship can be much easier.

Hope some of this info helps you, and here's wishing you the courage to fight for what needs to be maintained, and for what needs to be changed, and the wisdom to assert peace if possible and to discerne when the fight is, or is not, in the CHILD's best interests.
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Old 22.03.2017, 00:13
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Re: Divorce and children back to home country

The child decides as of 12 years old.
I hope it works out for you.
Please do heed the comment about it becoming very emotional when it carries on in time.
It's best for the children (even grown ones) that their parents remain calm, understanding and kind.
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