Rights of parents to child

[CyberSamurai013 69]

Theoretical scenario:

Immigrant undergoing AoS gives birth to her sponsor's child in US. What rights does she have to the child? If her sponsor does not fight can she leave permanently with the child? Basically looking for what rights each parent has before and after birth as far as international, etc.

[Inky 1,110]

Child would need a US passport and both parents have to sign for the passport.

[CyberSamurai013 69]

Would there be an option for her to go to court if the sponsor refused to sign?

[Ontarkie 14,223]

Each parent has the same rights to the child, now if the one parent has no abjection to the child leaving the country the other parent can leave just like that with US passport in hand. Just because one is a immigrant it does not take their rights away.

yes if one parent refuses they can always go to court.

Edited April 3, 2012 by Ontarkie

[CyberSamurai013 69]

Ok, thank you guys.

[VanessaTony 3,567]

There's a couple of issues.

First, if she doesn't have legal status and her AOS doesn't go through and she has a child, just because she has a USC child doesn't mean she can stay.

Just because the child is hers doesn't mean she can take it with her if she is being deported because the child is a USC (different issue if the child is also an immigrant obviously) with USC family. The child will most likely be awarded to the USC if the USC won't let it leave (assuming there are no issues with either parent being "bad") because while yes she CAN fight it in court she's being deported so she may not have the ability or means to go to court.

Lets say she is able to fight it in court... it doesn't necessarily mean the child can leave the US. In fact there have been cases where the judge rules the child CANNOT leave the US because the country is a non-hague country and if the child goes it might not come back.

Long story short it is "safer" to have a child only once immigrant status is secured, and then to assume that you might be living the rest of your days in the US because the other parent won't let you remove the child from the country.

[aaron2020 11,651]

Legal status in the US has no bearing on parental rights.

The mother has sole rights before birth unless a court says otherwise. The unborn has no rights. Dad has an interest in the pregnancy, but is pretty powerless if mom wants to leave the US before she gives birth.

Both parents will have equal rights to the child if the child is born in the US. Neither parent can deprive the other parent of the child; meaning one parent cannot decide alone to move the child to another country without the other parent's permission - this would be illegal and is called parental kidnapping. If she wants to permanently move the child back to her country legally, she will need either the father's permission or a court order.

[CyberSamurai013 69]

Ok, first off thank you all for your responses.

We went to an immigration attorney today, actually 2, to get answers.

Bottom line is both parents have equal rights to the child. Prior to birth a viability argument can be made past 28 weeks. Either parent would need written permission or a court order to take the child out of the country. The immigrant has the right to file for AoS on their own upon the dissolution of the relationship. The argument would be a good faith effort to maintain the relationship and the best interest of the child to have both parents in their life.

If the immigrant wanted to return to their country then the case would go in front of a federal judge due to international laws and treaties.

If either parent took the child without the other parent's written consent that constitutes abduction and in the case of 2 countries, international abduction which would be a federal crime.

There are many ifs but both parents DO have equal rights.

Edited April 4, 2012 by CyberKnight13

[aaron2020 11,651]

Legal status in the US has no bearing on parental rights.

The mother has sole rights before birth unless a court says otherwise. The unborn has no rights. Dad has an interest in the pregnancy, but is pretty powerless if mom wants to leave the US before she gives birth.

Both parents will have equal rights to the child if the child is born in the US. Neither parent can deprive the other parent of the child; meaning one parent cannot decide alone to move the child to another country without the other parent's permission - this would be illegal and is called parental kidnapping. If she wants to permanently move the child back to her country legally, she will need either the father's permission or a court order.

Ok, first off thank you all for your responses.

We went to an immigration attorney today, actually 2, to get answers.

Bottom line is both parents have equal rights to the child. Prior to birth a viability argument can be made past 28 weeks. Either parent would need written permission or a court order to take the child out of the country. The immigrant has the right to file for AoS on their own upon the dissolution of the relationship. The argument would be a good faith effort to maintain the relationship and the best interest of the child to have both parents in their life.

If the immigrant wanted to return to their country then the case would go in front of a federal judge due to international laws and treaties.

If either parent took the child without the other parent's written consent that constitutes abduction and in the case of 2 countries, international abduction which would be a federal crime.

There are many ifs but both parents DO have equal rights.

Deja vu.

[VanessaTony 3,567]

Ok, first off thank you all for your responses.

We went to an immigration attorney today, actually 2, to get answers.

Bottom line is both parents have equal rights to the child. Prior to birth a viability argument can be made past 28 weeks. Either parent would need written permission or a court order to take the child out of the country. The immigrant has the right to file for AoS on their own upon the dissolution of the relationship. The argument would be a good faith effort to maintain the relationship and the best interest of the child to have both parents in their life.

If the immigrant wanted to return to their country then the case would go in front of a federal judge due to international laws and treaties.

If either parent took the child without the other parent's written consent that constitutes abduction and in the case of 2 countries, international abduction which would be a federal crime.

There are many ifs but both parents DO have equal rights.

Filing AOS alone... no. That's not right. It's either in a valid relationship, or VAWA (abuse).

You're right, both parents DO have equal rights (well honestly it depends on the state because some states still have some crazy laws) but that doesn't mean anything really. The case I mentioned previously, the judge ordered that the women could leave with the child and there was visitation and all that stuff included in the Order. Well it was appealed and the decision reversed because Order's in the US can't be upheld in other countries and removing the child from the US meant the child was no longer under US law. So while yes, to the child they might have equal rights but it's more likely that in a custody arrangement with the immigrant moving overseas that the US courts would award the child to the USC so the child remains under US law (but that again depends on WHERE the immigrant is moving to)... it's a bit of a mess really :S

Regarding taking the child without permission yes, a federal crime... but ask the parents of the children that WERE taken how quickly the wheels of justice moved. The other party disappears with the child, changes name, doesn't say where they are and years later and you're still without your child. There are some really famous cases of this happening. There were some cases where the permission to take the kids on holiday overseas was given, but then the other party disappeared.

The lawyers you spoke to were telling you how it's SUPPOSED to work but it doesn't always work that way. I've never heard of this "viability argument" and doubt you can stop someone moving overseas while pregnant, good luck with that one! Regarding federal judge, did you ask about the cost involved with that? How long it would take?

Edited April 4, 2012 by Vanessa&Tony

[JimVaPhuong 4,863]

The immigrant has the right to file for AoS on their own upon the dissolution of the relationship. The argument would be a good faith effort to maintain the relationship and the best interest of the child to have both parents in their life.

For removal of conditions, yes. For adjustment of status, no - not in most cases.

There are a couple of legal cases regarding this. Choin v. Mukasey, in the 9th Circuit Court in 2008, and Matter of Sesay, at the Board of Immigration Appeals last year. Both of these cases had initially been denied by USCIS because the applicant divorced before USCIS approved their adjustment of status. Both the court and the BIA held that both applicants could adjust status because they married the petitioner within 90 days, filed the adjustment of status before the marriage was two years old, but USCIS took more than two years to adjudicate the AOS and the applicants divorced in the meantime. In essence, they determined they were eligible to adjust status after the divorce primarily because they had remained married for more than two years before divorcing, and were not subject to the conditional permanent resident status covered by INA 216.

This is what the BIA said in their decision:

We determine that a fiancé(e) visa holder is eligible to adjust under section 245(a) of the Act if, at the time of adjustment, the applicant can demonstrate that he or she entered into a valid marriage to the fiancé(e) petitioner within the 90-day period, provided that the requirements of section 216 do not apply. The statute does not require that the marriage exist at the time that the application is adjudicated outside the section 216 time frame.

So if the applicant remains married to the K1 petitioner for two years then they are no longer subject to INA 216, and aren't required to adjust to conditional permanent resident status. Without INA 216, there is no explicit requirement that a K1 adjustment of status applicant be married to the petitioner at the time the adjustment of status is adjudicated.

Bear in mind that the law is convoluted and incomplete, and the BIA made this decision by reading and interpreting the law prior to the Immigration Marriage Fraud Amendments (1986), and then analyzing precisely what changes those amendments made to the law in order to try to determine which of the original requirements were superseded by the amendments and which could be interpreted, more or less, as they existed previously. Prior to the IMFA a K1's adjustment of status was automatic, more or less, if they married within 90 days and were not otherwise found to be inadmissible, even if the marriage was subsequently dissolved before they adjusted status. This led to a lot of immigration fraud, which the IMFA was designed to address. The IMFA added the 2 years of conditional permanent resident status in INA section 216, and made the adjustment of status subject to the same discretionary factors as any other immediate relative. The BIA determined that an applicant who wasn't subject to the conditional permanent resident requirement (two year marriage) should be treated as K1 applicants were previously treated, and presumed eligible for adjustment if they weren't otherwise inadmissible, even if the marriage had been dissolved.

It's highly unlikely that USCIS would interpret the Sesay decision to mean that any K1 adjustment of status applicant could adjust status, even if their marriage was already terminated, regardless of how long they had been married. After all, the IMFA was introduced specifically to address this. Your attorney is probably aware of the Sesay decision, which is probably why he gave you this opinion. I personally believe his interpretation is incorrect.