Posted on Oct 4,2009
Q. While working in Chile, I had a son with a man I didn't marry. I've been the child's primary caretaker. Dad has visited once in awhile.
A year ago, I filed a petition in the Chilean Minor's Court and got permission to bring our son to Massachusetts for a three month visit. While here, due to the falling economy, I lost my job there. So, I decided to stay here.Now the dad is threatening to file a federal court petition for the return of our son to Chile. What are his chances of success.
L.E., West Newbury
A. His chances are not good for a return, but the court can order visitation. Under the Hague Convention on the Civil Aspects of International Child Abduction your retention of the child is wrongful only if it is in breach of the dad's rights of custody under Chilean law; and if, at the time of the retention, those rights were actually being exercised by him or would have been exercised but for the retention.
The law of Chile provides that when unmarried parents live separately, the mother has sole responsibility to care for the children. The father only has the right to oppose any removal of the child from Chile, which in legal-speak means a ne exeat right.
Although you violated the Chilean court order by not returning the child within three months, that violation is merely a violation of the dad's ne exeat right which is not considered a violation of custodial rights as that term is used in the Convention. However, under the Convention, the dad can ask for visitation.That said, you need to file a complaint in the Essex Probate Court asking for an emergency order granting you sole legal and physical custody, care, and control of the child. And, ask that any visitation by dad be supervised to prevent any kidnapping; and ask that that dad's passport be given to a court officer the day before and retained until the day after any visitation. Also, go to my web site, www.nissenbaumhickey.com to look at other protective measures you should take.