Curly one actually. A woman, with 2 children, wants to divorce her husband to be with me. She wants to retain custody of her children. Nothing too unusual there. Here’s the interesting bit: she currently lives in Poland with the husband and kids, and wants to migrate to Australia. All of them are Polish citizens. I’m curious to know what is the legal approach to this somewhat sticky predicament. What rights does she/her husband have with regard to immigration and custody. It is probably a given that the husband would want to remain in Poland, but by no means certain. I can’t seem to find any precedent on the web for searching, although I’m certain one must exist. Anything anyone can tell me would be useful.

Regards,

d33j r093r5

This all depends, when her divorce hearing is before the judge both sides have to put in arrangements of how the children are to be cared for (financially and physical), if they both agree then all well and good they can go overseas if they want. But if he wants access (which he is entitled to legally) then she can't take them out of Poland without permission and if she does then he can file a report that she has kidnapped them even though she is their mother. Even if she has full custody she still has to get permission to take them overseas so make sure she does this during divorce proceedings and gets it in writing.

If you are going to sponsor someone who has children and they are to be included then the applicant will need to provide evidence of the children having the other parents permission and/or a court order to allow their migration.

You yourself will need a police clearance here in Australia.
You'll find details under the family visas via. Migrants - Visas & Immigration

The Polish legal requirements re a court order etc. will be in accordance with the Polish Justice system, a separate issue to immigration.

Things to ponder. Polish law as I understand it (only as I understand it, I'm no expert) is a little different in that if the mother has custody after a divorce and decides to up-sticks, she is able to. I'm not certain of the details, my information is 2nd hand, but apparently a mother CAN leave with her children. I know if a child is born in Australia, it automatically has Australian citizenship, whether or not the parents do or don't. Even if the child leaves with his/her parents, they still retain that citizenship. I'm not certain if the same is true of Poland, but in the instance of a mother leaving with her children, the law doesn't view the kids as "belonging" to Poland, and as such, if the principal custodian leaves with the kids (Poland favours the mother in these circumstances), they are able to. Migration might be another matter though. In any case, my consideration was more how Australia might possibly view the matter. I’m not certain one way or the other whether it is relevant or not to Australian law and migration, or whether it is purely a matter for the Polish legal system, but if Australia has a policy with regard to such situations. In any case, the information you provided has been very helpful. I guess the next step is to get some legal advice. Thanks very much!

d33j r093r5.

I'd not be too fussed with the Polish Law side and more what the Immi requirements are and whatever Immi requires in terms of some authorisation from the Polish side is what you will need to comply with.

As for someone being born in Australia becomes an Australian citizen, though that is irrelevant, it is also not the case where the parents are not PRs here or citizens.

You might just save yourself a heap in legal fees here if you have the woman research what the legal situation is in Poland rather than just have thoughts on it.

Actually, she is, she just hasn't finished yet. This is a new-ish situation (last couple of days), and we're both investigating the possibilities on both sides; why I don't know so much on the Polish side of things as of yet. I won't know any more really until Monday about what the situation is with Poland, but DO need to find out as much as I can on the Oz side. But what you have said makes sense. Either way, I am also in the process of speaking to an Immigration Agent to find out all I can about due process and the legal ramifications. Again, thanks for your help.

d33j r093r5.