Divorce overseas often leaves Americans with few custody rights
Like most parents, Airman 1st Class David Jensen wants nothing more than to spend time with his son, Christopher.
Unlike most parents, Jensen’s time with his child is strictly limited and closely enforced. Every few weeks, Jensen visits with Christopher, 3, under the direct supervision of a German social worker.
Jensen’s German ex-wife also attends the meeting, which lasts little more than an hour. Until October last year, Jensen hadn’t seen his son for more than two years because of disputes with his ex-wife, he said.
“When I do get to see him, it has progressed along pretty good,” said Jensen, 40, who works at Ramstein Air Base in Germany.
“But it will be a long time before I get into a normal relationship with him. I’m still a stranger. He doesn’t even know I’m his father.”
Jensen’s wife was unavailable for comment.
Jensen said he is grateful for any time he can spend with Christopher.
“It’s frustrating and it does make me sad,” Jensen said. “But considering that I went over two years and was not able to see him at all, anything is better than nothing — even five minutes.”
Jensen’s case is a poignant example of the complications that can arise when marriages fail for an American servicemember at an overseas post.
Not only is the servicemember overseas for a limited time, but all civil proceedings must go through local courts — even if the couple are both American. The only other option for Americans is to return to the States to get divorced.
In most cases, the best the U.S. military can do is refer a member to a local attorney or help translate court documents.
“The U.S. military legal system does not handle any civil court matters such as divorce and custody matters, cannot represent U.S. personnel in a German court and cannot influence a German court in any way,” according to a written statement from the U.S. Air Forces in Europe’s judge advocate general’s office.
That is laid out in the Status of Forces Agreement between the United States and Germany, according to the statement.
“There is no support here. You’re basically on your own,” Jensen said.
A foreign system
Air Force Master Sgt. George Hall is well-versed in the complications of an overseas separation. He has been in the midst of a divorce battle for nearly two years. At its center is his 3-year-old son, whom Hall has fought to see on a regular basis. Hall’s wife, who did not want to be identified, has primary custody of the boy. She said she did not want her son’s name or photograph in the paper.
Hall has a pile of correspondence from his commander, his congressman and the U.S. Consulate in Frankfurt, but he still feels he can’t get the help he needs.
“We’re sent here and when we ask the government for help they turn around and say we can’t help you,” Hall said. “They say they won’t leave any soldier behind, so why are they leaving families behind?”
Navigating the legal and emotional hurdles after a marriage falls apart is tough for anyone, anywhere. But an overseas divorce throws in a number of additional challenges, said Barbara Ensslin, special consular services chief with the American Consulate General in Frankfurt.
Ensslin’s office does help Americans with a variety of issues involving child custody, child visitation, international travel and child abduction by an estranged spouse. Right now, the office has more than 135 such cases on the books.
“Child-custody issues are complicated even in the United States, but they are much more difficult when custody has to be decided by foreign courts,” Ensslin said.
The Consulate General in Frankfurt has seen such an increase in the number of cases it monitors involving American children that the issue has become a priority for the U.S. diplomatic corps, Ensslin said. A binational commission on such issues was formed in 2000, and cases involving American children are regularly discussed, she said. Most involve situations where one parent is accused of abducting a child. But cases involving enforcement of visitation rights also regularly come to the table.
Roughly half of the cases Ensslin’s office sees involve active-duty or retired military members and Department of Defense employees.
As in Jensen’s case, the situation for American servicemembers is complicated because troops come to Germany for a set time — usually two or three years. When an American servicemember has to leave Germany, the consulate will monitor the case — but the servicemember must have a German attorney to shepherd the case through the system.
In most such cases, a German court is likely to grant custody of the child to one parent, said Otto Niemiyer, a German attorney in Landstuhl. Niemiyer said he handles about 20 divorce cases a year involving American military members.
The hardest thing for Americans to understand, he said, is that the youth authorities may make recommendations to a court, but that does not mean the court will accept the recommendation. Sometimes, parents have to go through multiple court hearings to get a decision, Niemiyer said.
If the child is under the age of 8, it is likely that the mother will retain primary custody, he said. If a servicemember has to move to another post, visiting the child becomes extremely difficult.
“That is a situation where you cannot exercise child custody because it is too complicated,” Niemiyer said.
Jensen is scheduled to return to the United States in November. He said he is trying to work out a way to stay in Germany, even if it means leaving the military.
“If I have to go flip burgers at Burger King to be here with my son, I’d do it. If I go back to the States, that would be a death sentence to my relationship with my son,” Jensen said.
Hall, 36, said he has faced obstacles at every turn in his divorce settlement, but the most difficult has been getting German courts to enforce the agreement allowing him to visit his son regularly.
Hall is supposed to see his son every other Wednesday and every other weekend, but there are times when his wife won’t cooperate, Hall said.
Ensslin said she could not discuss the details of any individual case. However, she said that enforcing visitation rights when one parent is uncooperative is one of the thorniest issues her office faces.
“That is the central theme in all of our discussions with high officials,” Ensslin said. “It boils down to the issue of whether the German courts can enforce visitation rights by having law enforcement policemen go and take a child.”
The issue is a sensitive one, however. Most officials are wary of sending in the police to take a child for a court-ordered visit, for fear of creating a scene where the child is torn from his mother’s arms. That would be bad for the government and, more importantly, could be traumatic for the child, she said.
However, Ensslin said headway is being made. In a recent case, law enforcement and youth authorities went to the home of a German mother who had abducted her young American child to Germany from his home in the United States. Authorities removed the child and helped the American father return home with his son.
“The State Department continues to press officials here and in other countries where this is an issue to take such measures,” Ensslin said.
An uncertain future
Hall said he considers himself fortunate in one respect. He is not scheduled to return to the United States until 2007. By then, though, his son will be only 6 years old.
“Many cases like mine are out there, and we just run out of time,” Hall said.
One American civilian said staying in Germany was the only way to continue his fight to see his three daughters, whose mother is German.
Layne MacQuarrie, a Luxair pilot who also has taught at Embry-Riddle University at Spangdahlem Air Base, said he has spent $100,000 in legal fees and has lost his home in the divorce and custody battle.
“I’m going to keep going,” MacQuarrie said.
Asked what advice he would give to a young G.I. who was thinking of marrying outside the United States, MacQuarrie, 50, said: “I would still marry for love. I would stick my neck out. But it would be bad advice not to be aware of how it works over here. If the marriage doesn’t work, you better realize that the deck is stacked against you as a foreigner.”
Hall’s latest battle is to take his son home to Colorado to see Hall’s parents. Hall’s wife refuses to relinquish the boy’s U.S. passport, Hall said.
According to Ensslin, who would not discuss Hall’s case specifically, a custodial parent is legally able to do this because she is entitled to maintain a child’s passport. Hall cannot get a new passport for his son unless his wife signs the paperwork.
That law was passed to help prevent estranged spouses from abducting their children. However, it also can mean that fathers such as Hall aren’t able to take their children out of Germany. Hall said the German court did order his ex-wife to relinquish the boy’s passport, but she hasn’t complied.
Hall, of Colorado Springs, Colo., said he understands that the SOFA limits the military from helping, but he thinks the system ought to change.
“If they’re going to say ‘we can’t help you,’ then they should stop sending us here,” Hall said. “What am I supposed to do at this point? We’ve got to rework the SOFA and maybe provide some legal assistance for the folks here. Families are being destroyed.”
Here are some government contacts for help with child custody, child visitation and other children’s issues overseas:
U.S. EmbassyClayallee 17014195 BerlinTel. 030-832-9233Fax 030-8305-1215Duty officer: 030-83050
Consulate GeneralSiesmayerstr. 2160323 Frankfurt am Main, GermanyTel. 069-7535-2514 or 2516Fax 069-7535-2252Duty Officer: 069-7535-0
CENTRAL AUTHORITY IN GERMANYThe Attorney of the Federal Supreme Court Central AuthorityAdenauer Allee 99-10353113 Bonn, GermanyTel. 0228-410-40Fax 0228-410-5050Web site: www.bundeszentralregister.de
CENTRAL AUTHORITY IN THE UNITED STATESU.S. State DepartmentCA/OCS/ACS/CI2201 C St. NWSA-22/Room 2100Washington, D.C. 20520Tel. 001-202-736-9019Fax 001-202-736-9126
National Center for Missing & Exploited Children2101 Wilson Blvd., Suite 550Arlington, Va. 22201-3052001-800-843-5678 (not toll-free outside the United States)
— Source: Consulate General, Frankfurt