Legal Translation Services for Relocation
International employment trends and global mobility give rise to the need for certified translations of official documents. The challenge with international child relocation law is that the law itself is rather simple and straightforward, the challenge is in its application. The foundation for this challenge in application is that the law is based on uncertainty. In fact, according to one leading decision, “each relocation case should be decided on its individual facts to determine what is in the best interests of the child”. There are no presumptions to work from – each court must determine, based on all the proof, whether it has been “established by a preponderance of the evidence that a proposed relocation would serve the child’s best interest”.
The challenge of application is however somewhat unique to the US. For instance, according to the English case Payne v. Payne, “relocation applications by the primary care provider are normally granted except when incompatible with the child’s welfare”. However it must be noted that a 2011 Court of Appeals case has since backed away from this guidance.
One of the reasons the US system is unclear is that it attempts to adopt the legal principles that apply to domestic relocation applications. Although like domestic relocation applications international relocation applications cover the same basic ground of wanting to move with a child from one location to another location, they differ in that they also tend to raise a number of significant additional issues – a key difference being the difference in the nature of the applicants, with one very real difference being the special circumstances of the expatriate spouse.
For instance, applications by expats for international relocation are often made by mothers who want to return to their country of origin. They seem to fall into three distinct categories:
- Trailing Spouse: one who accompanies the other spouse on an assignment to a foreign country, usually for a limited number of years. In what is a very typical scenario, after some years in the foreign country, the parties’ entire world has changed. The non-trailing spouse has advanced their career, has adapted well to life and wants to stay indefinitely, or at least extend his stay. However, the trailing spouse has had an entirely different experience. They are lonely, isolated and miserable. They often do not work, miss their family and friends, and have experienced far more culture shock than expected. The relationship between the spouses has spiraled downward, with one wanting to “go home” with their child while the other insists they stay put or return without the child.
- Romantic Expat: one who moves from his or her home country for romance, often to a country whose culture, traditions, and language are entirely different. Such relationships are especially prone to breakdown even after they have a child.
- Holdover Expat: someone who left his or her home country for a temporary period of time, perhaps coming to the current jurisdiction to study or on a work assignment. After some years there he or she meets someone and they have a child. When the relationship breaks down the expat wants to return to the country of origin with the child.
Typically, regardless of the scenario, the arguments presented in opposition to the relocation application will often prevail. This is because the courts focus on the best interests of the child without fully appreciating the drastic impact that the mother’s unhappiness and often justifiable bitterness will have on the child’s well-being. Not only are the mother’s concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy, and obsessive.
When representing the parent requesting the relocation, perhaps the best argument that can be made draws from the business world. Here, it is commonly accepted that spouse or partner dissatisfaction is a leading cause of ‘expatriate assignment failure’, which the business world defines as ‘the inability of an expatriate to perform effectively in a foreign country and, hence, the need … to be fired or recalled home’. To prevent this, international companies devote substantial resources towards this. A similar argument can be made in the legal realm and thus urge a fair, appropriate and enforceable compromise solution. More so, if the other country has a developed legal system with child custody laws that reflect a similar philosophy to the US and strong laws to prevent international child abduction, an appropriate solution might be to allow relocation more liberally.