International tug-of-war in custody fight

The mother wants full custody so she can return to the US with her daughter. Photo / File

Family Court to rule on which parent should be given custody

An international tug-of-love will play out in an Auckland courtroom after a mother fled New Zealand for a new life in New York.

The woman's ex-partner was waiting for an agreed "play date" with the couple's daughter - but the mother boarded a plane to the US that day so she could pursue her career there.

The man fought for three years before a Hague Convention ruling forced his ex and child back to New Zealand.

Now the woman is seeking full custody of the child so she can return to the US with her daughter.

The Herald on Sunday cannot reveal the identities of the parents or the child because the case is subject to Family Court restrictions.

According to a decision by the United States Court of Appeals, the child was taken to New York by her mother in 2012 after she wanted to relaunch her career.

The father agreed the child could accompany the mother for no longer than four or five months.

Despite the agreement, the mother was concerned that the father did not consent to her taking the child without him, according to court documents.

The judgment also stated the mother "lied" about her departure date, telling the father that he would have a "play date" with the child on March 7, 2012, but instead she left with the child on that day.

When the woman failed to return the child to New Zealand four months later, the father initiated the Hague Convention proceeding.

After a trial in September 2013, a district court overseas ordered the child be returned to New Zealand. At that point, the mother had been living in New York for 18 months.

The mother then unsuccessfully appealed the decision in the United States Court of Appeals. In a judgment issued in January last year, a judge ruled that despite the child not having a permanent home in New Zealand, the country was her "habitual residence" and because the father had some custody rights and did not consent to the mother taking her overseas indefinitely, the "removal was wrongful".

The mother and the child have since returned to New Zealand, but the case will now be heard in the Family Court at Auckland District Court next month where it will have the ultimate say in where the child lives.

Otago University family law expert Mark Henaghan said if the court ruled the child was better off in her mother's care, then there was no reason why they could not return overseas. "It is quite an unusual case because the child is young and the mother is trying to set up a life for herself," Henaghan said.

"But almost all family cases have their own unique characteristics. It will be an interesting decision for the court to make and it will look at the motivations of the parents. The court is governed by one principal and that's what is best for the child."

The Hague Convention is an international treaty designed to return children promptly and safely to their "home" country where custody can be settled under local laws.

In 2013, 109 Hague Convention applications were lodged with the courts. Those included 33 applications by parents whose children had been brought to New Zealand, and six applications for access to children here.

It also included 62 applications by parents whose children had been taken overseas and seven applications for access to children overseas.