Really difficult...Need advice

[Deputy Purple 1,294]

I can not judge if the peruvian mother is a good mother or not. I know nothing about her. But I can see that the father (being mad at the mother) is considering to remove the mother from their child's life. That, to me, indicates a father who does not have the best interest of the child in his mind, but cares about his own agenda. Every child needs both parents, but children of young age need their mother more than their father (biologically and statistically).

I've been a Single Father since before my youngest daughter's 3rd birthday. Their mother was present (around the edges of their lives so to speak) but never in the role of a parent. Those 10 years of my life would have been a lot easier if I just let her have my daughters and paid her Child Support but that would not have been in my daughters' best interest. Your assumptions that his motives are not the best interest of the child are as bad as assuming that the mother is a bad Mom.

It would be prudent to prevent international travel of the child until a family court decides matters of physical custody.

Anyway, in the interest of the child, you (the adults), need to figure out a way to go your separate ways and remain civil with each other and to find a way for you both to remain in the child's life.

That I agree with, lock, stock & barrel...

Edited April 19, 2010 by Bob 4 Anna

[When2RNLove 6]

WOW! I didnt know that it was an issue to reopen a topic....I guess I will listen to you and not ask for advice anymore. I just thought maybe there were some new people that joined that maybe had better advice then just get an attorney...obviously I will need an attorney. Im trying to find out if anyone has gone through this or knows of someone that maybe could help...........but I guess this is the wrong place

I am a Father with Sole custody of my daughter and I know how you feel about your child. Here's the first step I suggest you do as this is what I did, and of course it will cost you additional monies. Seek a "Family Court" Attorney. Tell the Attorney you wish to file "A Motion for Emergency Ex Parte for Temporary Custody" and a "Proposed Emergency Ex Parte Order of Custody." The Attorney will file this for you for a fee of course, and then a court date will be set for the hearing. This will at least stop any activity she may be attempting. The Attorney may and should ask why you are doing this, simply tell the Attorney "I believe she, the Mother, will attempt to leave with the child which is against my wishes. Trust me, in most states, the Mother is considered the Legal Custodial Parent. Sorry to say, Men or just Sperm donors in the eyes of the law even if your name is on the Birth Certificate. This is just the way it is if it has not been some decision made in a court of law. Of course I'm NOT a Family Attorney and let's make this clear, as this is my own experience. I have only studies in Criminal Law. Hope this gives you somewhere to start.

[beachboy 0]

Ive brought this topic to discussion a couple of times, but need to reopen it due to alot of changes. My wife and I have been married for almost 2 years now. We have a beautiful baby girl who is almost 2 years old. We just came back from Peru after waiting there for her K3 visa to be approved. We arrived in the states in December. Her parents and sister also live in the US. She thought because this is a new country that it would be better for her to move closer to her parents, and get adjusted that way. Well that hasnt helped us at all.( Spends all her time with her parents ) Now she wants a divorce. She hasnt adjusted status yet. I try to explain to her if we divorce then she will have to leave. She then says that we should just seperate and adjust her status and then when its approved get divorced. First of all Im not going to do that. Im done throwing money away. My main concern is the kid. I want to get divorced now, but what will happen to the kid. I dont want her to leave! She is my life! If my wife takes her I back to Peru then I know I will never see her. The child has dual nationality. So what are my rights? Can she stay with me? Also when I file for divorce, can I sue her for all the money spent on the petition? Plane tickets etc....

[beachboy 0]

I am in deep sympathy with you. If I were in your shoes, I'd call all the major network TV news programs: 60 Minutes, Dateline, 20/20. That's the only way you'll get the right answers and get it done. I wish you well, my friend.

[Darnell 8,478]

WOW! I didnt know that it was an issue to reopen a topic....I guess I will listen to you and not ask for advice anymore. I just thought maybe there were some new people that joined that maybe had better advice then just get an attorney...obviously I will need an attorney. Im trying to find out if anyone has gone through this or knows of someone that maybe could help...........but I guess this is the wrong place

Oh - I wouldn't posit that, at all - even that is just too harsh.

But you know what? You've gotten prior topics here, same subject, with some responses. If I was doing it, 2 months past the last topic, I'd go back to it, and post something new in the same topic, maybe even telling the prior posters what I learned, what the results were from any immigration attornies that I visited with, any research at the divorce court in my town, etc etc and then ask again for MORE INPUT.

My apologies if I seemed harsh about it -it was one of those 'serious spit-takes' after reading yer new topic - I had to think - wait a mo, he got answers before, even I put up some stuff in that topic, and now he's asking again? #######?

But it's ok - come on - don't have such a strong reaction to ME, personally - I'm just sitting here at my keyboard, same as you. If we were sitting in a pub, knocking back a few, I'd be mapping this out for you on greenbar paper with blue crayon, then grabbing the yellow pages and finding a bulldog lawyer for ya, maybe even fronting the calls to vette all the lawyers I'd be talking to .. But, and alas, we're not at a pub, there's just that keyboard.

Two months have passed, and it smells like yer still in the planning stage. IMO, that's about 6 weeks too long.

[Brother Hesekiel 2,236]

No more Netbook. A real computer. Let's look at this like intelligent humans, shall we? I like to separate this into the following 3 parts: divorce, child custody, and immigration.

1) IMMIGRATION

The former K-3 did not adjust status. If the O.P. and the immigrant now split without having filed for AOS, she's out of status, and has no basis to adjust to LPR. Hence, it's only a matter of time until she will be asked to leave the country. This process can be accelerated by deliberate intervention. It can escalate and get really nasty, or it can go smoothly. Either way, if any of you see any way for her to remain in the US, I'd like to learn about it.

2) DIVORCE

I agree with about anybody that the O.P. should retain an immigration attorney and file for divorce. Usually I would suggest trying to salvage the marriage, but it looks like this is not an option for the O.P.

At the divorce hearing, child custody and child support will be addressed.

3) CUSTODY

At the divorce hearing, the Judge will determine what custody setup will be in the child's best interest. He or she will try to determine whether or not the mother or the father, or both should get custody of the child.

Let's play "devil's" advocate here by assuming the judge determines that the mother is the better parent. Normally, the mother would then get either sole custody of the child, or both parents get joint custody, or a combination of sole custody with visitation rights of the father would be decided upon.

However, here point 1 comes into play, in a big way. If the child is a US citizen, it has a right to remain in the USA. For Uncle Sam it does not matter if the child holds dual citizenship. For him the child is a USC, first and foremost. Thus, if entered into evidence that the mother is ordered to leave the US of A for good, it is unlikely that she will get custody of the child. The father is next of kin and unless he is unfit to gain sole custody, he will get it.

None of has anything to do with me, my opinion, my belief on separating mother from child, and so on. My emotion is totally out of this. I actually believe the child should stay with the mother, unless adverse circumstances dictate otherwise. But who cares what I think? What matters is the US law and its application, and I don't see any ruling that would allow the mother to remove the US citizen (child) out of the country.

[VanessaTony 3,567]

No more Netbook. A real computer. Let's look at this like intelligent humans, shall we? I like to separate this into the following 3 parts: divorce, child custody, and immigration.

1) IMMIGRATION

The former K-3 did not adjust status. If the O.P. and the immigrant now split without having filed for AOS, she's out of status, and has no basis to adjust to LPR. Hence, it's only a matter of time until she will be asked to leave the country. This process can be accelerated by deliberate intervention. It can escalate and get really nasty, or it can go smoothly. Either way, if any of you see any way for her to remain in the US, I'd like to learn about it.

2) DIVORCE

I agree with about anybody that the O.P. should retain an immigration attorney and file for divorce. Usually I would suggest trying to salvage the marriage, but it looks like this is not an option for the O.P.

At the divorce hearing, child custody and child support will be addressed.

3) CUSTODY

At the divorce hearing, the Judge will determine what custody setup will be in the child's best interest. He or she will try to determine whether or not the mother or the father, or both should get custody of the child.

Let's play "devil's" advocate here by assuming the judge determines that the mother is the better parent. Normally, the mother would then get either sole custody of the child, or both parents get joint custody, or a combination of sole custody with visitation rights of the father would be decided upon.

However, here point 1 comes into play, in a big way. If the child is a US citizen, it has a right to remain in the USA. For Uncle Sam it does not matter if the child holds dual citizenship. For him the child is a USC, first and foremost. Thus, if entered into evidence that the mother is ordered to leave the US of A for good, it is unlikely that she will get custody of the child. The father is next of kin and unless he is unfit to gain sole custody, he will get it.

None of has anything to do with me, my opinion, my belief on separating mother from child, and so on. My emotion is totally out of this. I actually believe the child should stay with the mother, unless adverse circumstances dictate otherwise. But who cares what I think? What matters is the US law and its application, and I don't see any ruling that would allow the mother to remove the US citizen (child) out of the country.

Also, if her parents are here, and other family members, they may decide that allowing the child to have access to MORE of it's family members than it would in Peru would be in the child's best interest.

OP I wish you the best. Family issues are bad enough without adding Immigration issues, and vice-versa.

[thongd4me 69]

I would suggest checking if Peru adheres to the Hague Convention against International Child Abduction.

That is definitely a threat, given the dual nationality issue.

Wrongful Removal or Retention

The Convention provides that the removal or retention of a child is “wrongful” whenever:

"a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

"b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.^[4]

"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."^[5]

^{http://travel.state.gov/family/abduction/prevention/prevention_560.html}

[Deb+Steve 13]

This link will confirm that Peru does:

http://www.hcch.net/index_en.php?act=states.details&sid=60

However, you really should consult with a family lawyer first and leave the immigration issue until you have a thorough understanding of what your rights are with respect to your daughter. Best of luck ...

[justashooter 430]

Why does everyone always side with the mother during custody issues! Im in my daughters life way more then she is. Just because she carried her for nine months doesnt make her a mother. Im not taking anyone away from anybody....this is HER choice! I didnt choose to screw someone over! She should of thought about that before bringing someone into this world. Grant her parents custody...are you kidding me? They cant even take care of themselves.

speaking as a male USC who won child custody in a divorce from another USC, then raised his children (who are in their 20's now) you have a very complicated situation in terms of the "best interest of the child".

start by documenting in a simple outline form the typical week in the child's life, in terms of who is with her when and who does what for her when. get statements from relatives or acquaintances to confirm this (do not need to be notarised at this point). take this info to a good divorce attourney (a woman, if possible). tell the atty how the immigration law works with regard to K3 and that you want to keep the child in USA (for many obvious reasons) and how you plan to manage single parenting. explain how the mother would not be as well suited to care for the child, even if she was to stay in USA. explain that the mother has already demanded seperation, and has asked you to defraud the USCIS in effort to maintain her residency.

any decent atty will attempt to establish a status quo order that ties the child to your local community (your family, day care if applicable). then allow the K3 to expire. keep a close watch on your child when this happens, as the mother will likely go illegal and steal the child. it may be years before she is caught and jailed for contempt of court before being deported. line your ducks up before you tell your wife what you are doing, and only tell her what your divorce atty advises.

as for the wife's parents taking custody, this is a remote possibility involed only when both natural parents are deemed unfit (serious problems). if these people are illegal, be sure to point that out.

raising a child alone is difficult. i got 3 at ages 4,7 and 10. the impact on the child of an absent mother cannot be overstated, but can be overcome with good quality counseling and time spent in the library reading family systems theory. PM me if you need support.

[Peru2023 0]

Oh - I wouldn't posit that, at all - even that is just too harsh.

But you know what? You've gotten prior topics here, same subject, with some responses. If I was doing it, 2 months past the last topic, I'd go back to it, and post something new in the same topic, maybe even telling the prior posters what I learned, what the results were from any immigration attornies that I visited with, any research at the divorce court in my town, etc etc and then ask again for MORE INPUT.

My apologies if I seemed harsh about it -it was one of those 'serious spit-takes' after reading yer new topic - I had to think - wait a mo, he got answers before, even I put up some stuff in that topic, and now he's asking again? #######?

But it's ok - come on - don't have such a strong reaction to ME, personally - I'm just sitting here at my keyboard, same as you. If we were sitting in a pub, knocking back a few, I'd be mapping this out for you on greenbar paper with blue crayon, then grabbing the yellow pages and finding a bulldog lawyer for ya, maybe even fronting the calls to vette all the lawyers I'd be talking to .. But, and alas, we're not at a pub, there's just that keyboard.

Two months have passed, and it smells like yer still in the planning stage. IMO, that's about 6 weeks too long.

Youre right, and I appologize. The reason Im still asking for advice is I guess I dont want to face reality and start the whole divorce process. I gave it another 2 months to see if it was going to work, but finally realised that it is over.

[Darnell 8,478]

OK THEN - Time to Get Busy!

Good Luck ! Seriously !

[Monday Jones 6]

It may be easier than you think for your wife to leave the country with your daughter.

My sister got married in India. She wanted our niece, my brother's daughter, to go.

My brother is divorced from my niece's mother, but they both agreed that she could go. I had them sign notarized statements saying that I had their permission to take the niece out of the country, along with permission to treat her medically, if needed. I had a copy of her birth certificate. I ended up carrying a thick stack of papers so I wouldn't have any hassle taking her out of the country.

Turns out that I didn't need to bother. NOT ONCE was I asked about her. I was able to step on a plane once I was able to show we had the proper visas in our passports. We didn't share the same last name, but that is more common these days. We look alike enough for people to assume she is my daughter. Even if people did assume she was my daughter, there was no father around.

It is a scary thing. Your daughter could slip away. Please be careful.