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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 or Turkish family law, you may
contact me at fatmaesra@guzeloglu.legal