• Children's custody

Hi, we are Australian citizens (husband, 2 boys and myself). My husband brought us to India on the pretext of holidays and now says that he doesn't want to go back to Australia. He has all our passports and tells me that if I want, I can go bit he won't let my children leave with me. Can he do so? I don't want to live here and want to go back to Australia with my children where I am working as well. My boys are aged 13 and 11 currently. Please advice.
Asked 3 years ago in Family Law
Religion: Hindu

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6 Answers

File petition in family court seeking sole custody of your children 

 

seek court permission to take children abroad as you and children are Australian citizens 

 

3) seek orders to direct husband to hand over your passports in his possession 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

your husband cannot keep you and your children in India against your will. Your husband does not have the legal authority to prevent you from leaving India with your children.

Under Australian family law, you have the legal right to make decisions regarding the care and wellbeing of your children. In this case, that would include the right to take them with you back to Australia.

you should contact the Australian Embassy or High Commission in India for advice and assistance.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

You can go there. You can also claim maintenance for you and children under Australia or Indian law.

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

If you are not restricted from any court from taking your children outside India, you may take them with you.

Since there are no marital disputes between you and your husband, you may silently leave the country.

If you want to take them abroad legally then you may have to obtain permission from court.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

- Legally , your husband cannot restrained you from going Australia and your children if they are citizens of that country. 

- However, being the father , he has equal right over the children and he can also claim the custody or visitation right of them.

- As per law, a mother usually gets the custody of minor child , and father gets visitation rights, hence you can get the custody & permission after filing a petition before the court , but it may take much time to get the same .

-  Further, being the legally wedded wife , you can carry them to Austrilia as well. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Dear client,  

I'm sorry to hear that you and your children are in this situation. No, your husband cannot legally prevent you from leaving India with your children if you are all Australian citizens. As Australian citizens, you have the right to enter and leave Australia freely.

If your husband is refusing to return your passports, you may want to contact the nearest Australian embassy or consulate in India for assistance. They may be able to provide you with temporary travel documents so that you can return to Australia with your children.

It is important to note that family law and custody arrangements can vary between countries, so you may want to consult with a family law attorney in Australia for guidance on your specific situation once you return.

In the meantime, it may be helpful to try to communicate with your husband and see if there is a way to resolve the situation peacefully. If you feel threatened or unsafe, you can also contact local authorities or the Australian embassy for assistance.

 

 

 

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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