Ten years ago she was living a first-class lifestyle in New York's Upper East Side. Now a Kiwi mother of two is trapped in a cockroach-infested homeless shelter while she fights a bitter custody battle.

Kellie Hendry, 39, fled what she alleges was an abusive relationship two years ago and is desperate to return home to New Zealand. But a United States court won't let her her two children, Lili, seven, and Cameron, five, leave the country until the dispute is resolved. Lili was born in Christchurch.

In a bizarre legal quirk, US authorities have designated Hendry an illegal immigrant and barred her from working. And she has been left frustrated because an application to Work and Income New Zealand for the International Custody Disputes Benefit was declined because she doesn't have a valid US visa.

Hendry and her two children are crammed into a single room in a Harlem homeless shelter. She struggles to feed and clothe her family on a $347 a month public assistance benefit, plus the same again in food stamps.

Sporadic child maintenance payments from the children's father are immediately confiscated by the state to put towards her housing costs.

She has racked up more than $60,000 in legal bills fighting the custody case - which her Christchurch-based parents are helping to pay. After 18 months of hearings, the family hope to have the case concluded in January - but fear it won't bring an end to the custody fight.

"I can't believe I'm nearly 40 and stuck in an infested shelter with roaches in the refrigerator and dead mice in the cooktop," she said.

"I'm relying on food stamps to eat and the goodwill of friends to keep us clothed. The other day everything I was wearing, including my underwear, was a hand-me-down."

Hendry moved to New York in 2003 as a nanny for a wealthy family and soon went to work for their children's book publishing company. A year later she met her former partner, a comic book writer and publisher.

"I had everything, a job for life, and flying the world in first-class jets. I did some amazing things with them like spending time at their house in Rome. I had a great apartment on the upper east side.

"He was wonderful, charming, generous. We even walked through Central Park in the snow. I remember texting a friend to say that I felt like I was living in a fairytale."

Within a year she fell pregnant with Lili. But the relationship turned sour and she alleges he was occasionally violent, which he denies.

Seven months pregnant, she discovered he was living a double life with another woman and she secretly fled to New Zealand, where she gave birth.

"All I know was I had to get to a place where I felt safe, have my baby in peace and figure it from there," she said. "My boss was horribly upset with me because I up and left and I lost my job. I threw it all away."

But she maintained contact with the 42-year-old father, sending photos of their daughter and talking on the phone. "I'm from a two-parent family and I wanted that for my daughter."

After a year she agreed to a reconciliation and returned to the US in July 2006, falling pregnant with Cameron "within a matter of weeks".

"From that point on I felt trapped. Things were OK for a while, but we fell back into the same problems."

His promises of marriage came to nothing and without a green card Hendry found herself unable to work, stuck in their Queens flat and relying on him for meagre cash-handouts to feed the children.

The final straw came when he physically disciplined his 13-year-old son, to another woman.

"At that point I thought: ‘I've got to get out'."

She took out a restraining order and stayed with friends before going into a domestic violence shelter and finally, as the custody case dragged on, a homeless family shelter.

"When I sat down with the case workers and explained my story - they've seen everything from women being shot and stabbed - and they looked at me and said ‘we don't know what to do with you'.

"People can't help me. I can't get help, that's basically the crunch of it."

The trio have been living in the one room since November. This week Lili celebrated her 7th birthday there.

"It isn't what I'm used to," Hendry said. "It's a fairly rough neighbourhood, there was a kid shot on the corner last weekend.

"We do have our own room and beds for the kids, a table and chairs. There's no TV or couch, no kitchen but a mini-fridge and stove top. I've got pretty good with a toaster oven."

The family believed the court case would be finished by May but it will now drag on to early next year - and a decision then is not guaranteed.

"It's a farce. I can leave, but I can't take my kids. Technically, they are not holding me here but what mother is going to leave their five and seven year old on the other side of the world," she said.

She says the children's father is in ill health, suffering from diabetes, and on the verge of bankruptcy.

"I made bad decisions and I take full responsibility for that. But their father can't provide for them and the best way I can give them a future is back in New Zealand."

Hendry's father, John, wants his daughter home and says his grandchildren are being punished.

Although Hendry's mum has visited the family twice in the US, John has never met his grandson Cameron.

"It's pretty tough, tough on my wife. We did try to discourage her from returning. It's a nightmare.

"We want peace of mind for the kids but it just goes on and on. I think the relocation is going to be really hard, the American legal system is going to make it almost impossible. There are cases where they won't let them move from one side of the city to the other."

Her lawyer, Brad Andrews, said the family courts are not well equipped to deal with relocation cases "with this level of urgency".

"By law, cases involving the custody of minor children are supposed to be given priority. Due to budget cuts, cases are not receiving the priority they need, particularly a case as urgent as this one.

"The fact that this trial is likely to span close to two years is an outrage," he said.

"In essence, the father is winning this case by virtue of the court's being unwilling or unable to hear it on an expedited basis."

Although he believes there is "an extremely strong case" for their right to return, there is little New Zealand authorities can do because it is under the jurisdiction of the New York family courts.

"Perhaps the Government could petition for Lily's return as she is living in horrendous conditions. What's so frustrating about this case is that normally in this type of situation there's no attractive alternative: neither parent has access to any money or a better way of life.

"But here, Kellie has shown the court in her petition that the children would have a much better life in New Zealand, where they can live temporarily with their doting grandparents while Kellie returns to the workforce. But this remains merely a pipe dream as long as the case is pending."

The father says he "never physically abused Ms Hendry in any way" and alleges she physically assaulted him.

"Sadly, we emotionally were unkind to each other."

He says the children should remain in New York.

"Cameron has been here his entire life and Lili has been here for six of her seven years. Moving them over 9000 miles away solely to appease their mother is extremely unreasonable and will ultimately erode the strong relationship the children have with me."

He said: "I love both my children with Ms Hendry very much and am deeply saddened by the events that have taken place."

He says he has offered help with accommodation.

"If it were my choice, Lili and Cameron would be living with me and their mother would have unlimited visitation."

A spokeswoman for the Foreign Affairs ministry said it was aware of the case and had provided consular advice.

"The assistance our consular officers can provide is limited . . . Custody cases are a legal matter. Consular officers cannot intervene in the judicial processes of another country nor provide legal advice nor financial assistance." Fairfax NZ

- © Fairfax NZ News

Comments