Parents, in particular those with different nationalities should consider certain legal aspects before and after they decide to expand their family in order to have a saying on various important matters, avoid any unpleasant surprises and protect the best interest of their children.
Parents of Different Nationalities:
Certain Legal Aspects to Consider Before Expanding Your Family
by Fatma Esra Güzeloğlu
8 February 2016
Without a doubt, the world is becoming
more and more international by the day as the means of communication and
transportation rapidly enhance.
Correspondingly, a child having parents of different nationalities is not a
rare phenomenon in today’s world. Surely, it is very rewarding to be raised in
a multicultural environment and your child will benefit from that. However,
there are certain legal points you should be aware of and well-plan before
having a child. Some of the main considerations are as follows:
Nationality of the child
There is not one single rule on how a
person acquires his/her nationality. States establish and implement their own
laws concerning how their citizenship is attained. This is why; the parents who
would like to have a saying on their child’s nationality should be aware of
these different rules and plan accordingly, preferably before the birth of
their child. Citizenship can be acquired by birth or after birth (by marriage,
by naturalization, etc.). Here, our topic of interest concerns the citizenship
as a birthright. In that regard, there are two common policies that States
often adopt: national territory and/or common descent.
As the name suggests, national
territory approach refers to where a person acquires the citizenship
of the state where he is born in, such as in the USA. States which adopt this
policy often also acknowledge citizenship by common descent but subject it to
certain conditions. On the other hand, in the common descent policy the key
factor is the nationality of the parents regardless of the territory where the
child is born, such as in Turkey and many European, Asian and African
countries. Similarly, states which adopt common descent policy tend
to provide special rules in relation to individuals who are born in the
territory of the respective country. In this respect it is important to be
aware of these different rules and plan accordingly.
Dual citizenship is also an
important subject to pay attention to given that states apply different
policies in the subject matter. For example, some states allow their citizens
to hold dual citizenship whereas some forbid or impose certain restrictions.
Therefore a prior research on the matter plays a vital role in making a
comprehensive decision.
When deciding on your child’s nationality,
what are the aspects that you should take into consideration? In our opinion,
it is imperative that you consider:
·Where you envisage your family to live on
a long term basis
·Visa regimes
·Tax regimes (Some states subject their
citizens’ worldwide income to income tax, regardless of where they reside)
There may be other considerations that are
of significance depending on the circumstances and preferences of the parents. Indeed,
aside from the nationality, child’s permanent residence and habitual residence shall also have
certain legal consequences of which the parents should be aware.
Parents’ custody rights over their child
The issue of custody rights may not be as
straightforward as you may assume. Again, each state has its own rules on the
matter. For example under Turkish Law, in accordance with Civil Code No. 4721
Article 337, if parents are not married, custody right resides with the mother.
However if the parents are married, in principle, they exercise those rights
together as long as the marriage lasts, pursuant to Article 336. When the
parents get divorced, custody is granted only one of them. Therefore, under
Turkish law there is no legal instrument called as “joint custody”. If the parents are
not or no longer married, only one of them may exercise custody rights over the
child, whereas the other party has a right to personal relationship with the child.
On the other hand, some countries like the UK have the concept of joint (shared)
custody for
unmarried or divorced parents.
Indeed, custody right is an important
issue to consider before the birth of your child and it is advisable that you
seek for a legal consultancy in that respect.
Divorce of the parents
When parents, especially those of
different nationalities decide to get separated or divorced, it is of paramount
importance that they consider the best interest of their children during the
judicial process. Especially in cases where one of the parents wishes to relocate
the child to a state other than the one child was last habitually resident in.
In such circumstances, the parent should, preferably, have the consent of the
other parent concerning the relocation of the child. However if the parents
cannot agree on the matter, it is crucial that they pay attention to the
applicable rules on child’s relocation. Otherwise, it is highly likely to
encounter legal implications both in civil and criminal nature. For example, if
the conditions are met, left-behind parent may file a Return Application for
child’s return to his/her habitual residence pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.
Moreover, as undesirable as it may be,
depending on the circumstances, the left-behind parent may file a criminal
complaint against the parent who wrongfully relocates the child. This quarrel
over the child would not only prolong and increase the level of complexity of
the separation/divorce process but it may also cause severe negative effects on
the child.
In summary, parents, in particular those
with different nationalities should consider certain legal aspects before and
after they decide to expand their family in order to have a saying on various
important matters, avoid any unpleasant surprises and protect the best interest
of their children.
Should you have any further questions on
international family law or Turkish family law, you may contact me at
fatmaesra@guzeloglu.legal