Part 2 – Through the Legal Wringer

Behind Closed Doors Investigation

Trigger warning: The article contains content of specific persons’ experiences with post separation abuse. This may be triggering to readers with similar experiences

By Macel Ingles and Ka Man Mak

Three mothers share their legal hurdles and support obstacles from the police and women’s crisis shelter in Norway.

For immigrant women with children, the breakdown of their marriage means that they have to deal with the legal process of divorce and custody arrangements for their children. Processes that are oftentimes unintelligible to them. This puts them at a grave disadvantage as documents to be filed and signed are usually in Norwegian bureaucratic language and they do not know where to go to get guidance through these processes.

What usually happens is that the Norwegian spouses take care of all the papers and ask the immigrant spouse to sign all the papers. This is a problem if the spouse does not have access to information on what they are signing and the implications of what they signed.

In Kim´s case, she was asked to sign a document prepared by a Norwegian lawyer hired by her ex-husband and she was made to believe that the document was to let her sons get residency in Norway.

She did not understand that by signing the document, she was giving away her custodial rights to her sons.

“I didn´t know I´d given up custody of my children or the rights of them to live with me (by signing the documents). I thought I´d given residency, so there´s a residency and there´s responsibility. […] I thought I was just saying that the children would live in Norway,” she explained.

She further revealed that she felt rushed into signing the document without representation despite her being sick that day. Her ex-husband also refused her plea to settle the matter between themselves. Instead, he sent her a court summon and stopped her from seeing her children.

She received a court order in South Africa in 2018, asking her to bring her sons back to Norway. In that order, the Oslo District Court ruled that Kim had unlawfully removed the children from their habitual residence which the court established to be Norway.

By signing the document, she later realised that it meant giving up her custody rights. She is now in the middle of a long drawn out custody battle against her ex-husband. While the trial is ongoing, she is staying in Norway on a family reunification visa subject to renewal pending the decision on the case. She was also allowed a two-hour unsupervised visitation with her children.

In Norway, parents taking out a separation, and later divorce need to undergo a mediation process at the Familievernkontoret (Family Welfare Services Office) of the Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) as a requirement. The mediation includes settling matters such as agreement on custody and visiting arrangements of their children. 

The Norwegian Act relating to Children and Parents (the Children Act) Chapter 5 utilises the term ‘fast bosted’ translated to the equivalent meaning of both the child’s place of residence and parental responsibility, which has great implications on how custody agreements operate outside Norwegian borders and immigration visa processes. If a parent is given sole custody or ‘fast bosted’, this means that they hold all the decision-making power of their children’s place of residency, education, and personal and financial matters. They can limit and extend visiting arrangements if the court has not determined the visitation arrangement. So one parent may have sole custody rights and have to still share 50/50 visitation or contact arrangements.   

When the immigrant parent is not informed of what the implications are from these terms used in the Children Act, the agreement tends to be favourable to the Norwegian parent. Also, more often than not, the only overriding concern that the immigrant parent has during the mediation process is to ensure they have access to their children. In cases of high conflict in child custody, the case is referred to court once all measures are exhausted or one parent brings the other to court.

The challenge, therefore, is how the immigrant parent navigates the Norwegian system that decides how custody will be decided. Most immigrant women are unfamiliar with the system and fear unfair treatment. They have no one to explain to them what their rights are and how to go about the process. Information on websites is mostly in Norwegian and written in a bureaucratic language that is difficult to understand even for some native Norwegians.

In cases of shared custody or shared parental responsibility with a 50/50 visitation schedule, child maintenance support is not required even if one of the parents has less economic income than the other. This means the parent with a lesser income has to take on the expense of a single household and apply for support from NAV if eligible depending on the age of the child and level of income. Later, this could be used against them in a custody dispute, if the parent with a lesser income had to let their child spend more time with the parent who can provide for the needs of their child.

In case of a child custody dispute ending up in court, this puts the partner with lesser income in even more financial difficulty and sets limits to the kind of work they can get to be able to attend court hearings. It also complicates their applications for residency in the country as income and custody agreements are determining factors.

Kim related that she needed free legal assistance to file for custody of her sons and she got help from Free Legal Aid (Fri rettshjelp) but she felt shortchanged by the quality of legal advice that she is getting from her lawyers.

“It isn´t adequate. It doesn´t allay my fears,” she admitted. However, she also said that she understands why she is not getting the help that she expected from them.

“They have huge workloads and huge amounts of clients that they need to get to, and they prefer that, rather than spending time on a pro bono case,” she added.

She has however no other choice and just kept her lawyer, knowing that getting a new one will only take more time as this means the new lawyer will take time to study her case. For her, “It is not about changing lawyers necessarily. It´s about the amount of time that I´m allowed to have with them. And that, like works out to one hour in a month,” she further added.

She also believed that had she been able to hire a private lawyer, she would have already got the custody of her children back. This option, however, she has ruled out as she simply cannot afford private counsel.

As if the emotional burden following the divorce is not enough, the immigrant mothers also have to deal with custody battles that only add to their financial burdens of not only taking on domestic expenses but also legal fees.

Fair trials?

Kim meticulously documented her court experience in her notes and diary, and The Oslo Desk (TOD) noticed that what she noted down is far from the narrative in the court recordings. The disparity, Kim said, shows how the court failed to understand the pressures and the circumstances she was in and that the whole process broke her down mentally and financially. She said that she found herself in a situation that pushed her emotionally to the edge, a condition that was even used against her in court.

“I was under so much pressure, I didn´t know where I was living. I mean, I had no money. I had nothing here and used everything against (ex-partner´s name) to get full custody of the children and to say that I was unstable,” she recounted.

In her custody case, she asked her lawyer to invoke the European Convention on Human Rights on the right to family life to question the limitations on the number of hours she is allowed access to her children. To her, it is unclear why the decision was taken in the first place and what grounds were taken into consideration. At some point, her lawyer said that her case might just lead to reform in the law but the process was discontinued when her ex-husband withdrew his appeal.

At present, Kim gets to see her sons under supervision and lives with a friend. She is doing waitressing jobs to support herself, as well as pay for the upkeep of her apartment and car in South Africa that she left behind to pursue her custody case in Norway.

Norway is under increasing scrutiny from the European Court of Human Rights (ECtHR) in recent years after the court found violations of the right to family life in seven cases. There has been a total of 52 judgements passed against Norway throughout the Court´s history.

Also fighting a custody battle for her child, Suki, a Korean businesswoman is contesting the plea of her ex-husband to grant him custody citing difficulty in communication with her on how to raise their child.

Like Kim, she is also unhappy about the legal assistance she is getting, “My lawyer should be on my side, but she gives (me) a bit of pressure here and there,” she said. Instead of taking up her apprehensions about the care of her child when she is with her father in court, she said the lawyer is trying to reassure her that her child is adjusting well (to joint custody).

She claimed her daughter kept coming back from her visits to her father with bruises, feeling lethargic and unwell that she took pictures of to prove neglect. She is also displeased that her daughter, in some instances, is not properly dressed for the winter and shows up at her door without her winter jacket.

She felt that instead of arguing on her behalf that her child suffers neglect from her father, the lawyer is convincing her otherwise. “I feel like these people (in court) try to make my lawyer tell me- Why don´t you make your client understand this culture? You know, my (Norwegian) culture is the best. You have to convince her to understand. This is the culture.” 

Desperate to be heard, Suki got a professional opinion from a doctor on the matter who also appeared in court, “I needed professional words in writing so that he [the father] can listen. So as not to make (daughter´s name) any worse because in the past, he made her sicker. I did it to protect the child,” she added.

She also believed that the court is not taking her concerns as a foreign mother seriously and that puts her at a serious disadvantage to protect her daughter. She, for example, cited the case of the kindergarten and Barnevernet or Child Welfare Services being more concerned about her taking pictures of her daughter which they said would affect her daughter´s self-image than considering the situation as a domestic abuse victim.

She was also subjected to countless demands from her partner such as being pressured to live in the same area as him, and taking a borderline personality disorder test that she complied with, “I did it so he can leave me alone,” she pointed out.

In court, the kindergarten leader testified that Suki was putting ideas in her daughter´s head while a court psychologist said that she believed her claims of neglect are based on her anxiety and feeling rather than on facts. Testimonies, Suki believed, were lies.

She also claimed that her ex-husband just ignored her pleas to take better care of their child. “I feel like (the) court (is) giving him much more credit than he deserves. It´s not fair. But it´s ok if (daughter´s name) is happy and healthy, and all that, but that´s not the case,” she added.

“So I feel like these people (in court) try to make me feel fear. They try to make me fearful so that I can just agree. Like I make an agreement with them easily for their good.That´s how I feel,” she further added.

Asked for comment on how the courts rule on domestic abuse cases, the Norwegian Bar Association, a professional body and interest group for lawyers and trainee lawyers in Norway, admitted in an email to The Oslo Desk that “there are no such compulsory requirements for lawyers/judges/juridical staff to complete training regarding specifically domestic violence.”

It also revealed that “judges in Norway are generalists which means they are not specialized in, for example, penalty law. Therefore, judges are not obliged to train in specific juridical areas, including domestic violence.”

Furthermore, the Association explained that members are obliged to take further education classes of up to 80 hours within five years. However, the only obligatory topic is legal ethics and domestic violence as a topic for their continuing education is not.

Dealing with a Foreign Court

Unlike Kim and Suki, Linh is not only fighting a custody battle in Norway but is also doing it in Lithuania. This was after her ex-husband brought her son out of Norway without her consent in 2017.

She travelled to Lithuania to get her son back but sadly lost her court case to get custody of her child. Heartbroken, she appealed but also lost against the decision. The Lithuanian courts, while admitting the actions of the father were unlawful, concluded that they had to put the “best interest of the child” first.

The Lithuanian judges, in their deliberation, weighed Linh`s temporary residence permit in Norway against her son´s situation where he was attending kindergarten with the assistance of his father´s family members. She was, however, given the right to see her son twice a month via digital means.

According to the Norwegian Children Act, despite one parent having sole custody of the child, unless otherwise stated, that parent must ensure that the other parent has a right of access to their child, “If the parent who has parental responsibility or custody of the child prevents a right of access from being exercised, the parent who has the right of access may request a new decision as to who is to have parental responsibility or custody of the child.”

Linh reunited with her son again when her ex-husband and son moved briefly back to Oslo in 2020. However, she had already lost contact with her son for many years and was unable to communicate fluently in Lithuanian – the language her son now speaks after spending many years in Lithuania. She was not informed of her ex-husband´s decision to bring her son to Lithuania again, contrary to the law that requires that as a parent who has sole custody, “the other parent shall be notified a reasonable period of time in advance if access cannot take place as determined or if the time for the access must be agreed more specifically.”

Falling through The Cracks

When Linh´s ex-husband took her child to Lithuania, she turned to the Women’s Crisis Shelter for help. She was told at the shelter that she cannot get help as her son is no longer in Norway. “They said that in this situation, they don´t have any responsibility to help me with anything as it seems that I have no rights to stay in Norway during that time,” she recalled.

Linh could not get a residence permit to stay in Norway at that time due to the fact that she needs to get shared visitation and custody of the child, a case that was still ongoing in court.

She felt discriminated against and was told that since she is not a “Norwegian (citizen), her case will be treated differently. You are not Norwegian, so the law is going to be different,” she added.

TOD reached out to the Women Crisis Shelter to clarify who are qualified to get assistance from the shelter. In an email, it confirmed that victims of domestic abuse can get assistance from the shelter and that they use a SARAV3 tool to map the case brought to their attention.

It also clarified that while they may not have challenges with helping victims of abuse, they do at times have “challenges when it comes to the cooperation with other support agencies.”

Linh also turned to the police in 2020 only to be told that the child´s father has a right to be with her child even if she told them that she feared that her child will again be taken to Lithuania. She felt that the police took her ex-husband´s word for it and that he has sole custody, even if the case is still pending in court.

In 2021, when the father and son returned again and after experiencing not being heard by the police, Linh did not bother to report that her son told her that his father hit him and that she was threatened by her ex-husband with a gun to her head. She however decided to go back to the Women Crisis Shelter upon the advice of a friend who knew the abuse she suffered from her ex-husband. 

At the shelter, she was told she should go to the police but her lawyer convinced the shelter to help her. “It´s because of the power of the lawyer that they kept me there. It´s not about the responsibility to help me there. Because in the end, my case worker at the shelter told me that I do not have rights to go to the shelter, that I should go to the police,” she added.

She was also told that she cannot show proof of the violence she suffered from her ex-husband so she cannot be accepted at the shelter and that she should bring her case to the police. The shelter also refused to let her hide her child in the shelter saying this would mean that the police can take her son away.

In May 2020, Linh’s son and the father moved back to Norway but in September 2020, the father removed their son without notifying her for the second time. Then in May 2021, the father and son moved again back to Norway, but only to return to Lithuania in December 2021 for the third time, after winning sole custody at the Oslo District Court in November 2021.

Linh also said that she was bewildered by the custody decision as she claims she did not get proper translation support. Even if there was an interpreter present during the hearing, she could not understand what was being said and felt that a lot of details said in the court did not get translated back to her. She also had the impression that the interpreter did not understand the law either.

In Norway, court interpreters do not have obligatory legal training in translations.

Unfortunately, Linh’s fear did come true and her son was taken away from her two more times. To make matters worse for her, she recently received news that her immigration application was rejected and has to leave Norway by the end of March. She is looking to appeal but she feels she has failed to stop her ex-husband from taking her child. Even long after she divorced him, she is still suffering post separation abuse by depriving her of access to her child.

Trigger warning: The article contains content of specific persons’ experiences with post separation abuse. This may be triggering to readers with similar experiences

Investigation – Behind Closed Doors Overview
Part 1 – Unpacking Norway’s Intimate Partner Violence Incidence Among Immigrant Mothers
Part 3 – Gender-Based Violence: Norway Failed to Address Repeated Concerns from CEDAW, GREVIO, and Amnesty International

Behind Closed Doors is supported partially by FrittOrd Foundation with a fund of 50 000 NOK. Our investigations are important and expensive. Ka Man Mak has been working on this topic for the past 3 years voluntarily and onboarded Macel Ingles in 2022 as a contributing editor and reporter.

Ka Man Mak

Ka Man is an investigative journalist, documentary photographer, and social entrepreneur, as well as the founder of The Oslo Desk. She is a British-born Hong Konger residing in Oslo, Norway. She holds a Master in Environmental Geoscience and have taken numerous diplomas including child psychology, and a course in big data analytics at OsloMet. Made numerous publications in newsletters, magazines and Norwegian newspapers. Interested in edtech, constructive journalism, women in migration, Cantonese language, alternatives to capitalism and asylum policy.