 Dear Mr. Taquet: I am American and moved back to the USA shortly after a no-fault divorce, divorce à l’amiable, in 2007. I would like some advice about my rights regarding my child who lives with his father. My ex-husband now has a permanent partner in his life and I am not receiving any information nor am I asked my opinion about the decisions made for my son, even though the divorce decree states that the two parents must decide.
I believe that the divorce decree means that I have joint responsibility for our child’s education, health and general well-being. My ex-husband wants to distance himself from me to ensure that his current partner is not bothered by our communication, and so it seems like I have only visiting rights now. For example, I have never received a school report or been in contact with my son’s teacher and I know that my son is being bullied in school and that nobody wants to address this issue. Also, I recently called my son and found out that he was on crutches. Furthermore, my ex-husband has chosen a middle school and plans on choosing our son’s schools in future. I only discovered this in a passing conversation and was never asked about this. Finally, I was very concerned when I learned that our son had gone to Belgium for a week with his father.
I feel that I have not been correctly advised by our divorce lawyer because I have recently been told that my ex-husband has the right to take our son anywhere in the world and that I do not have any say in this matter. I would like to know the correct facts concerning this issue. I would also like to know what happens if my ex-husband decides to move further away in France. He now lives in Alsace and his ultimate objective is to move to Bordeaux with his new family. Lastly, I want to point out that the reason for our “amicable” divorce with full custody going to my ex-husband was due to his making it clear that he would fight with all his resources to get full custody, by proving that I was an unfit foreign mother. Since I am American and therefore had fewer friends and no family in France, I believed that I could not get joint custody of my child, and even less win a custody battle. Can you explain to me if there is a “non-confrontational” way of solving these issues with my ex-husband and getting some definitive resolutions?
ANSWER
To answer your last question, I do not know of any agreements dealing with complex issues that do not include a minimum of confrontation, including business negotiation. In essence, finding a way for two parties or more to agree on solutions, terms and conditions on how to carry out a joint project means stating openly the issues agreed and disagreed on. Only then can we review solutions that would enable the participants to come to a final compromise. This is never a smooth ride.
In divorce situations the road is even bumpier since personal motives and strong emotions come into play. Too often, any compromise is perceived by both parties as giving in to the other’s request. Until the parties can properly handle their power struggle there is no solution possible; giving up just about everything in order to have a “peaceful divorce” is never a good solution. It only delays the process of finding the right solution and makes it even harder and more confrontational.
The last aspect of your question that I would address is that a definitive solution almost always means getting a court order ruling. This means that you have a judge endorsing your decisions once you are able to reach a compromise with your ex. This is rarely the option taken since nobody wants to rock the boat at that point. Normally an agreement is usually good enough as long as the parties comply with the terms of the agreement, so why take the risk of jeopardizing it by going to court? But if you cannot reach an agreement between the two of you, the only solution left is to start a court case about those issues and naturally this is very confrontational.
Your expectations of not having a confrontational situation with your ex are totally unrealistic by nature. You would be much better off putting together a plan in writing that includes short-term and long-term goals with a description, of all the possible responses you could get from your ex, and also what would then be your next action for each of the topics you have raised.
Let me review them in more detail so you have a good base to work from.
First, I would like to give you a quick explanation of "Autorité parentale."
Dealing with the everyday stuff is your ex's responsibility. Dealing with the major things in your son's life must be a joint decision. Now it is clear that many parents disagree regarding what constitutes a daily/normal event in life and what is a big deal.
1 – The choice of a school is a big deal
Report cards are issued three times a year. As long as the child is doing well in school, there is not much to share since there is no need to make decisions. For the noncustodial parent, this information is essential since it enables him/her to follow the schooling of the child without being present all the time. It is an excellent summary of what is happening. Of course the choice of elementary, middle and finally high school is very important and must be a joint decision.
2 – Neglecting a child’s needs is a breach of the terms of the divorce decree
Bullying is unacceptable behavior and must be addressed. Since your son’s teacher has not taken this situation seriously, you will have a difficult time proving a breach of the divorce decree. You will need to have solid proof since the school will initially downplay the problem. Indeed, where is the fine line between rough housing and bullying?
3 – Traveling in a foreign country without proper approval is plainly unacceptable considering how often children are kidnapped by parents this way
In today’s world, foreign travel is no longer possible without the consent of the other parent. Courts and governments have ruled in favor of joint consent for travel because of the increase in parental abductions of children. At border crossings most countries demand that the parent present prove that the other has agreed to this. This said, if your ex drives to Belgium, he will not be stopped because there is no longer a border control between the countries as the result of the Schengen treaty. To prove that he breached the divorce decree, all you need is to document that they were in Belgium
4 – The location of the home must stay the same as it was when the divorce was decreed and any major change requires the other parent’s approval or a judge's decision
This depends on the circumstances. If both parents live in Paris and have organized their lives with their children and the guardian moves to Bordeaux, this is a big deal because it disrupts the life of the child by changing the frequency of the visits with the other parent and so on. In your case, as long as you are in the USA, your son’s moving from Alsace to Bordeaux does not change things much. It does not change your travel time nor does it complicate the trip. It is still a plane trip that lasts about eight hours. I am sorry if this sounds insensitive but this is the way the court will look at it.
5 – The foreign mother is unfit to have custody
Way too many French parents married to foreigners claim this during the divorce and are able to get away with this lie. I have addressed this issue many times in this column. French judges rule exclusively according to what they think is the best interests of the child. Even though it is true that a French judge faced with a custody battle will have an initial tendency to prefer that the child stay in France, and therefore will award custody to the parent residing in France, this tendency can easily be fought by the foreign parent. According to the information I have, a foreign mother has about the same chances of getting custody of her child as a French one, even when she moves back to her home country. I believe that it was a mistake for you to have given up the fight for joint custody. This is going to make your current struggle even more difficult to win.
To properly prepare yourself for the power struggle you are about to start, I strongly advise you to write down the solutions you want implemented. I am not asking you what you think is realistic to expect from your ex. Considering the way you described the situation there is just about zero room for change. I am asking you what you want, no matter how unrealistic it seems. You should consider the different solutions possible should you stay in the USA or should you move back to France. Indeed it is clear that living very close geographically to your son would help your situation enormously since you could meet with the teachers and the principal at your son’s school, as well as participating to some degree in the outings/field trips and so on at the school. Do not necessarily comply with your ex’s wish to stay as far away from your son as possible. Your ex should be able to handle his private life and comply with the divorce decree at the same time! Indeed, you should leave the task of finding practical solutions for the second step of the process to a professional so that you do not stay locked in your current impression of what is possible to achieve and reasonable to expect from your ex.
Your goal is to do a thorough job addressing the issues that bother you and work from there to prepare a strong proposal that would be a solid base for a negotiation round.
Now in the process of doing this, calling for a meeting with the teacher is always a good thing. If your ex-husband wants to be present, then say “yes” regardless of how you feel about him being there. Chances are that you will have gotten more than half of the global solution right there if you manage this meeting well.
This said, the meeting should be prepared very differently from the one with your husband since they have completely different goals. In each case, you should write down notes to prepare your responses and to make sure the discussion goes where you want.
With the teacher, you should be able to get an unbiased evaluation of your son both on academic and behavioral grounds. You should prepare questions (lots of them) grouped by topic so that you always have one ready depending on where you are in the conversation. You should make the effort to not mention or bring your ex into the conversation at all, but strictly focus yourself on the teacher. Your ex is just a peripheral to the conversation. If your ex attends the meeting, just make sure that you have a plan on how to avoid being tricked by his behavior, so that no matter how well he knows how to push your buttons, this time it is not going to work.
The meeting with your ex should be prepared very differently. To start with, there is no way you can trust the information you will get out of this conversation, so there is no need to list the information you would like to get no matter how much you are dying to get it! The second thing is that this is going to be a 100% power struggle with someone who has won that battle close to 100% of the time in the past. So the essential part of your preparation is to identify at most two or maybe three topics that are really worth talking about and prepare all the statements, questions, responses that will enable you to stay on track during the meeting. If you just focus on the agenda you want addressed and the very few key points to be made, then chances are you will be able to have a valuable conversation with the possibility of coming to a solid agreement on some of the aspects of these issues that bother you.
In many ways these are two completely opposite preparations. The meeting with the teacher is about fishing for information; therefore you are light, flexible and responsive. You are guiding the flow but the essential part is to have the flow continue for the entire meeting. The meeting with your ex is about boundaries and territories so there you should be rock solid on your propositions, keep to what is essential for you, and decide which topics are being discussed and when.
Jean Taquet holds a masters degree in law from the Sorbonne University and the French BTS accounting degree. He served as a jurist officer in the French Army in1985. He has been managing the refugee ministry of the American church since 1993, and has written the Question and Answer column in the Paris Free Voice. This column has continued and a book has been made with it. The Insider Guide to Practical Answers for Living in France. As an associate member of the Delaware Bar association since 1987, he had an article published in the February 1988 issue of the Delaware lawyer and sat as a guest member on the wills and trusts committee.
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