Child Custody and Tourist Visa to Australia

[winelight 0]

I am not sure if this post is "on topic"...but I am not sure where else to post it.

My questions are simple...but the background is rather complicated...so I will ask the questions first -- and then attempt to explain...

My fiancee resides in Australia as a student and has a child living in Manila. Prior to applying for her K1 visa in Australia, she needs to go to Manila and take her daughter to Australia. After the K1/K2 visa is granted in Australia...both will fly to the States. My fiancee was married in the Philippines, but has obtained a divorce in Australia. Her ex husband cannot seem to be located. Legally, she is divorced in Australia, but still married in the Philippines. Strange...but true.

So...my questions are...

What will Philippine or Australian authorities require for my fiancee to retrieve her 10 year old daughter from Manila and fly her to Melbourne on a tourist visa?

She has no custody documentation as the divorce was granted in Australia...and the husband cannot be located. Must she produce proof of 100% custody for the child...either by Philippine authorities...or by Australian immigration...prior to the child entering Australia?

_____________________________

Ok....these are the basic questions. The complexity here is that she cannot first receive the K1-K2 in Australia...and then fly to Manila to get her daughter (which would be the simplest way to do this)...and then fly with her daughter to the States. The Philippines will not allow her to go to the States on a K1 visa until she proves she has an annulment (her Australian divorce will not be honored in the Philippines)(Again...she is STILL MARRIED in the Philippines). In fact...it's not clear she would be allowed to leave the Philippines PERIOD until her K1 visa expires. So...the plan is for the fiancee to retreive her daughter BEFORE she has to turn over her passport for the K1 visa...and then leave for the States with her daughter from Australia after the K1 and K2 are approved in Australia.

I still need to check in the Australian VJ forum if my fiancee will have problems leaving Australia for the States with her daughter...but I'm assuming that if she had sufficient custody to enter Australia with her daughter (the daughter having a tourist visa)...she will also have sufficient custody to leave Australia for the destination of her choosing (the States in this case).

Thoughts or advice on any of this will be appreciated.

[VanessaTony 3,567]

The question is, what sort of custody documents do the PHILIPPINES need? I understand that typically the unwed mother gets all right, but what happens to a wed mother? Does she still need the fathers permission to remove the child?

Also once in Australia, she will be applying for a K2 correct? the US embassy in Australia follows US rules in that proof of custody is required before the child can be issued a K2 visa. This may be as simple as her returning to court and obtaining a "full custody" paper.

She needs:

1. To find out what the requirements are for a married woman to remove her child from the Philippines. Does she require the fathers permission?

2. If she is able to somehow remove the child and take to Australia, then she will need custody papers (showing FULL custody to her) to obtain a K2 visa for the child. I understand this can be a lengthy process.

She may need to locate the father and get him to sign something, it might be the easiest way.

[Inky 1,111]

She will need police reports from manila and australia. Since she lived in both places.

She will need to prove full custody with court documents or have a letter from the father saying he is aware of the child moving to america and he is allowing her to move to america.

[JimVaPhuong 4,863]

A tourist visa to Australia would probably not be appropriate. They are granted for 3 or 6 months (except in exceptional circumstances), and that may not be enough time to process the K1 visa. US consulates are also often very reluctant to issue a visa at a consulate where the applicant is only in the country as a visitor. They usually require the applicant to be a lawful resident of the country where they submit the visa application. This is to prevent people from "consulate shopping" by getting tourist visas to countries where they think it would be easier to get a visa to the US.

If your fiancee is in Australia on a student visa then you should look into getting a family member student visa. This will allow her daughter to join her in Australia, and stay for the same length of time she is permitted to stay. There are a lot of requirements that have to be met. VJ is not the best place to get that information. Start here:

http://www.immi.gov.au/students/

You also need to find out what the requirements are for her daughter to leave the Philippines. I have no idea where to get that information.

Once her daughter is in Australia then she can look into getting an Australian court order for custody. I don't know the divorce and custody laws in Australia, but I would presume it's possible to have the father's parental rights revoked by the court if she can show he is inaccessible and has no contact with her or her daughter (basically, an abandonment claim). You really need a family law attorney in Australian to figure this one out. If the US consulate is convinced that the father has no parental rights then she won't need his permission for her daughter to emigrate.

Since you don't know how long this entire process is going to take, you might want to get this straightened out before you send the K1 petition.

Inky is correct about the police certificates. This might pose a serious dilemma if the Philippine government finds out the police certificates are needed for a fiancee visa application to the US. You are correct that two Philippine nationals cannot obtain a divorce, even in another country. There is also no way to get her Australian divorce judicially recognized in the Philippines if her spouse was also Filipino. If she marries you without obtaining an annulment in the Philippines first then she would be considered a bigamist in the Philippines. She could be arrested if she ever returned there. This skeleton will remain in her closet for the remainder of her life. I realize it's a major pain in the tail bone, but you might want to consider having her get her marriage annulled in the Philippines before pursuing the K1 visa.

[canadian_wife 1,829]

I also suggest you check the PI forums to see what needs to be done to take her daughter out of PI. If she is still legally married in PI, does the father have rights? Can she just take her daughter out without permission? Plus, if she is still legally married in PI, will that be an issue with the US government?

All these questions need to be answered before you do ANYTHING. Please consult the PI forum where there are more knowledgeable people about local PI laws

Good luck

[Otto 83]

**Duplicate Topics Merged

[winelight 0]

Wow....thanks to everyone for all of the replies. It's good info.

To make things clear and also address questions in the replies...here is a bit more information:

1. Yes, once in Australia, the mom will apply for the K2 for her 10 year old daughter. My fiancee will, of course, be applying for her own K1 visa at the same time.

2. My fiancee is in Australia on a student visa...so she is not "consulate shopping" in this case. The student visa and time in Australia was sufficient for her to claim Australia as her legal domicile for the purpose of the divorce (so...she is under the jurisdiction of the Australian courts). I'd think this should be sufficient for her to make the K1/K2 application within Australia. I'd also like to think that the child need not be under Australian jurisdiction to receive the K2. I think it is often the case that a child lives elsewhere...yet plans to join the custodial parent after the granting of the K2 visa. If this is not the case...I'd like to hear from someone on this. Any other way just doesn't seem to make sense. The child need not physically appear for the K2 application due to her age.

3. Yes...I posted in both the Australian and Philippine forums on these matters.

So...I learned a few things here. The info on the possible issue regarding police certificates is interesting. It is certainly something to be concerned about. I mentioned "Manila" because that is where the daughter is now...but the police cert will actually come from a small town in the Visayas where my fiancee lived prior to Australia. I think there is a way to work this one out. I know of a VJ couple that was in a similar situation and got the police report. Still...this is worth knowing.

I have also learned that the Embassy or Consulate usually follows the customs of the country they are in when it comes to acknowledgment of divorce. So...in Australia...she will be divorced. The Embassy in Manila, however, will not want to issue the K1 without an annulment (because she is still married in the Philippines). If someone has information to the contrary....please advise. I wish a Philippine annulment had been possible in this case....but it was not for a variety of reasons that go beyond the scope of this thread.

Great info on the tourist visa and processing times for the K1. Typical times in Australia are 60 days. Assuming the tourist visa is 90 days...this makes it very tight. There are ways to extend the tourist visa to 6 months...but no assurance this will happen as the child is of school age and Australia may want to send the child back to the Philippines for school.

I have been told that there is a Philippine government social agency (can't remember the agency name) that can issue a document that shows the mom as the custodial parent. There is usually no custodial dispute as the mother is assumed to have custody in the Philippines unless there are clear reasons she should not have custody. Assuming such a document will suffice for both travel to Australia (for Philippine officials) and for the US Embassy in Australia when granting the K2...this should solve the custody matter. Again...unless someone in this forum has knowledge to the contrary (that a court order or court papers are required)... this seems to be the easiest and most efficient way to go.

Lastly, am I right to be afraid if the K2 is issued while the child is still in the Philippines? Even if there was a way for someone other than the child's mom to get the child out of the Philippines...I fear that the K2 stamp in the child's passport could prevent the child's exit from the Philippines (Maybe the Philippines will consider the K2 invalid because the mom's K1 is invalid without an annulment? Just thinking out loud here - LOL).

Thanks again to all that have replied. Hoping there are others in VJ that will learn from the good information being shared on this topic.

Edited November 14, 2010 by winelight

[Deputy Purple 1,294]

You do realize that since the mother is/was married to the child's father she doesn't have sole custody of the child under Philippine law?

If she ever returns to the Philippines before obtaining US Citizenship she can have some problems with leaving the country.

BTW, Philippines local police clearances are worthless for US Immigration purposes, she will need a NBI Clearance.

[Inky 1,111]

To make things clear and also address questions in the replies...here is a bit more information:

1. Yes, once in Australia, the mom will apply for the K2 for her 10 year old daughter. My fiancee will, of course, be applying for her own K1 visa at the same time.

Um the mom can't apply for the K1 - K2... The USC who is bringing them to the US has to apply for the K-1/K-2.

[Deputy Purple 1,294]

Um the mom can't apply for the K1 - K2... The USC who is bringing them to the US has to apply for the K-1/K-2.

Wrong...

The USC applies for permission to Sponsor them.

The Beneficiary will be the person applying for the Visa at the US Embassy.

[Inky 1,111]

Wrong...

The USC applies for permission to Sponsor them.

The Beneficiary will be the person applying for the Visa at the US Embassy.

No not wrong, The USC sends the K1 - K2 application to USCIS. Then when the time comes they go to the interview for their visas. THEY themselfs do not apply for it.

[winelight 0]

You do realize that since the mother is/was married to the child's father she doesn't have sole custody of the child under Philippine law?

If she ever returns to the Philippines before obtaining US Citizenship she can have some problems with leaving the country.

BTW, Philippines local police clearances are worthless for US Immigration purposes, she will need a NBI Clearance.

_________________________________________

This was a helpful post Bob 4 Anna. Thanks.

How does she prove custody...and at what point must this be proven? Must it be proven at the Embassy in Australia...or...within my filings to USCIS as a USC?

Can DSWD in the Philippines issue a letter or document showing full custody? Must we go to court? The whereabouts of the father are unknown. I just need to make sure that we have the right documentation for the daughter of my fiancee to receive the K-2 visa.

Yes...I am very aware that my fiancee (and later wife) cannot return to the Philippines until she becomes a USC. Also...do you you see any risk in her obtaining the NBI Clearance as she has no Philippine annulment, yet will apply for a K-1 visa?

[JimVaPhuong 4,863]

No not wrong, The USC sends the K1 - K2 application to USCIS. Then when the time comes they go to the interview for their visas. THEY themselfs do not apply for it.

I think we're getting hung up on semantics here. The US citizen sends a petition to USCIS. Once approved, the petition makes the beneficiary eligible to apply for a visa. The DS-156 and DS-156K are visa applications (says so right at the top of the forms), and they are signed and submitted by the beneficiary - not the US citizen petitioner. US citizens don't apply for visas to the US. Foreigners don't submit petitions to USCIS.

2. My fiancee is in Australia on a student visa...so she is not "consulate shopping" in this case. The student visa and time in Australia was sufficient for her to claim Australia as her legal domicile for the purpose of the divorce (so...she is under the jurisdiction of the Australian courts). I'd think this should be sufficient for her to make the K1/K2 application within Australia. I'd also like to think that the child need not be under Australian jurisdiction to receive the K2. I think it is often the case that a child lives elsewhere...yet plans to join the custodial parent after the granting of the K2 visa. If this is not the case...I'd like to hear from someone on this. Any other way just doesn't seem to make sense. The child need not physically appear for the K2 application due to her age.

I wasn't suggesting she was consulate shopping. I was saying that consulates usually require that a visa applicant be a resident of the country where they submit the visa application, and that this requirement was intended to prevent consulate shopping. Your fiancee is obviously a resident of Australia. Her daughter, on the other hand, is not. I have no idea how a consulate handles this situation. They may indeed issue a visa to a K2 derivative who has only a tourist visa, provided the primary beneficiary is a resident. I doubt seriously they would issue a visa to a K2 derivative who isn't physically in the country. They may not require her daughter to attend the interview, but they will definitely need her daughter's passport.

I have also learned that the Embassy or Consulate usually follows the customs of the country they are in when it comes to acknowledgment of divorce. So...in Australia...she will be divorced. The Embassy in Manila, however, will not want to issue the K1 without an annulment (because she is still married in the Philippines). If someone has information to the contrary....please advise. I wish a Philippine annulment had been possible in this case....but it was not for a variety of reasons that go beyond the scope of this thread.

Yes, absolutely. I wasn't suggesting there would be any problems getting the consulate in Australia to recognize a divorce decree issued in Australia. I was suggesting that it might be difficult getting the Philippine government to cooperate in issuing the required documents for a fiancee visa to the US when the beneficiary is still legally married in the Philippines.

It's too bad that an annulment in the Philippines isn't possible. It would sure remove a lot of the potential problems.

Lastly, am I right to be afraid if the K2 is issued while the child is still in the Philippines? Even if there was a way for someone other than the child's mom to get the child out of the Philippines...I fear that the K2 stamp in the child's passport could prevent the child's exit from the Philippines (Maybe the Philippines will consider the K2 invalid because the mom's K1 is invalid without an annulment? Just thinking out loud here - LOL).

If it were me, I wouldn't even consider trying this. I would get the child to Australia before even attempting to apply for the K2 visa.

[canadian_wife 1,829]

No not wrong, The USC sends the K1 - K2 application to USCIS. Then when the time comes they go to the interview for their visas. THEY themselfs do not apply for it.

The USC petitions, the beneficiary applies

It is vocabulary, but it is what happens

Good luck

[winelight 0]

Just to update everyone...and to bring a conclusion/resolution to this topic:

1. The US Consulate in Australia requires to see my fiancee's daughter (10 years old) in person in Australia. The only other option they allowed was to proceed with the K-1 for my fiancee in Australia...and then proceed with the K-2 for the child in Manila AFTER the K-1 is granted in Australia. Australia can transfer the case to Manila after the K-1 is granted. (That said, we will NOT choose the Manila option for the K-2 as there is too much risk that her daughter's K-2 may not get approved in Manila. She will get her daughter in Manila prior to K-1 visa approval.)

2. There is normally no problem getting a tourist visa for the child to enter Australia if the child travels with a parent. I suspect there would be no problem extending the tourist visa time, as necessary, to allow time for the child to be interviewed at the US Consulate (if the interview cannot happen during the time allotted on the tourist visa).

3. The Australian Consulate requires either court documentation to prove custody of the child before granting the K-2 for the child, or, written documentation from the father that he gives his permission for the child to immigrate to the United States. If the later,a copy of the father's photo ID must accompany the statement...and it is best the statement be notarized. If the statement is done prior to the time of K-1/K-2 visa application, an explanation as to why the statement was done earlier may be expected by the Consulate. I'd recommend anyone with a similar scenario to my own first contact the US Consulate in Australia (SydneyIV@state.gov).