Father would not give up K2

[emilioako 1]

My fiancee have a 2 yr old daughter from previous relationship (she was never married). The biological father's name is on the NSO birth cert. and even says not married. They take turns taking care of the baby. He is aware of me & my fiancee's plan in including the baby as part of the K1/K2 application. But the father is determined not to give up the baby to accompany my fiancee. She's trying to be civil with him in the hopes of convincing him it is for the good of the baby in the future. What's our recourse? Any help is welcome. Thanks

[GaryKO 49]

My fiancee have a 2 yr old daughter from previous relationship (she was never married). The biological father's name is on the NSO birth cert. and even says not married. They take turns taking care of the baby. He is aware of me & my fiancee's plan in including the baby as part of the K1/K2 application. But the father is determined not to give up the baby to accompany my fiancee. She's trying to be civil with him in the hopes of convincing him it is for the good of the baby in the future. What's our recourse? Any help is welcome. Thanks

Need to check with a lawyer but most times the right over the custody of illegitimate children is vested to the mother. The mother may transfer the child’s residence to another country, if she desires this.

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.(As amended by Republic Act 9255, approved February 24,2004.)

[beejay 123]

If they were never married then the mother has sole rights to the child and can do whatever she wants. Regardless of what the father wants or if he has a relationship with the child. There have been other Pinay on this board who, although they were not married, have had the father on the b/c and no questions were asked about permission during the interview. But like the other poster said if you would like to check with a lawyer to confirm you can.

Having said that, to keep things civil, perhaps your wife could promise to send the child home every summer so he doesn't have to worry about losing his relationship with his daughter. She could also promise to allow regular communication between the child and her father via phone or skype or whatever. If he's been involved in raising the child I'm sure you can understand why he would be reacting the way he is. Respect that and you may get further with him.

[Artisan 138]

My fiancee have a 2 yr old daughter from previous relationship (she was never married). The biological father's name is on the NSO birth cert. and even says not married. They take turns taking care of the baby. He is aware of me & my fiancee's plan in including the baby as part of the K1/K2 application. But the father is determined not to give up the baby to accompany my fiancee. She's trying to be civil with him in the hopes of convincing him it is for the good of the baby in the future. What's our recourse? Any help is welcome. Thanks

You are going to have a long and expensive legal battle ahead of you. While Art. 176 grants custody of illegitimate children to the mother, it was ruled in Silva v. Court of Appeals, the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children. Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.

The case was nearly identical. The children in question were illegitimate and the mother had married a foreigner. The father won the initial case, the mother won the appeal, and the Supreme Court ruled against the Court of Appeals. The only way around this is if it can be proven that the father presents a grave or imminent danger to the child, which would have to be proven with overwhelming evidence.

Honestly if you want to maintain the relationship of all parties you had best seriously consider moving and living in the Philippines otherwise the legal battle may turn ugly as it does appear the father wants to remain a part of his daughter's life.

Edited December 6, 2012 by Artisan

[Laser1 63]

If the father is reasonable, she may be able to negotiate an equivalent amount of time with the child, perhaps a one or two week visit per year.

[Grant PDX 183]

My experience is ONLY anecdotal, as I don't know what the laws would be in this case. I brought my fiancee to the US over 6 years ago. She had an 18 month old son at that time. Her son had his father's last name and his father was listed on the birth certificate. He had been involved in the child's life but had been spending less and less time with him, due most likely to the desires of the mother NOT the father.

My then fiancee applied for a passport for her son without the father's involvement. I included him in the visa petition. He interviewed with her at he USEM interview and he received his visa at the same time as her. At no time was the father's involvement or desires even requested. I went to the USEM interview with them and nobody ever asked about him.

I am now divorced from my ex- and have custody of that son, who I had adopted a few years ago. We are going through a fairly ugly custody battle right now, but it has already been determined that I will retain custody. She has expressed a desire to return to the Philippines and stay if she could take the children. The US courts won't allow a move back. But they would allow visits. In discussions with an attorney with experience with international custody issues I've discovered the following:

In the Philippines the mother will ALWAYS (please understand that is always, 100%) have full custodial rights to children under 7. For children 7 and older it is expected that the mother will have custodial rights and it is difficult, but not impossible, for the father to gain custodial rights.

There is an ongoing case right now that the US father had been given full custody of children. The got the agreement confirmed in the Philippines. The Filipina ex-wife took the children to the Philippines and didn't return with them as previously agreed. The US father got a Filipino attorney to enforce the agreement. The Philippine court eventually overturned the previous agreement as it was against Philippine policy to give custody to the father for children under 7. The father essentially had a Philippine court agreement giving him custody, but the Philippine court later refused to acknowledge that agreement as ALL children under 7 are under the sole custody of the mother.

I know not all of this applies to you. Some is anecdotal, some is my understanding after spending $1,000s trying to retain custody of my children. The part that I see applying to you is that the mother likely has full legal rights to the child and, at least anecdotally from my experience, the father might not even come up during the petition or visa application process. The ONLY impact we had was that, since there was a child from the relationship that had both parents listed on the birth certificate, the CENOMAR wasn't enough. After the interview the USEM took an additional few weeks to as the NSO to do a more in depth verification of no marriage.

I hope you find some of that helpful.

Good luck!

[Artisan 138]

If the father is reasonable, she may be able to negotiate an equivalent amount of time with the child, perhaps a one or two week visit per year.

I don't understand why people think this is even remotely reasonable. The father probably sees his daughter at least once or twice a week now if not more based on how the OP said the parents share responsibility raising the girl. In what universe would any father that loves his daughter give her up to be raised so far from home that she would lose nearly all cultural identity and attachment to her birthright (even being raised in a large Fil-Am community is still nothing like being raised in her own culture). The idea that someone would be 'better off' being raised in the US compared to the Philippines is incredibly racist (or ethnist, however the PC police word it these days). People have a right to be raised by the parents that are responsible for bringing them into this world. Thankfully the Philippine courts agree and are a bit more sane concerning family law than the US courts.

Being illegitimate and recognized has legal meaning in the Philippines for a reason. The child will bear the father's name, inherit, and have nearly all the advantages of a legitimate child. Unlike in the US a father can force his name on the birth certificate by using a public document or private written instrument acknowledging the child as his own. Also let's be clear about how the IRR (Implementing Rules and Regulations) impacts RA 9255 regarding the surname of the child. While RA 9255 states the child 'may' use the father's surname, the IRR regarding RA 9255 uses 'shall' which in effect makes it non-optional. This may be done without the consent of the mother or the child (unless the child is 18 years or older). It should also be noted that the child cannot be adopted and have her name changed without the consent of BOTH parents, legitimate or not. If the mother can prove that she exerted earnest and diligent efforts to locate the whereabouts of the biological father but without success, then the written consent is not necessary. No matter what though it is likely that this girl will forever bear the name of her father given the father's position in her life.

The father in this case clearly wants to be a part of his daughter's life and any man or woman that would attempt to sever that relationship is a monster and/or full of spite. The mother needs to decide what is more important to her, the daughter or her kano fiance. The OP has to decide if the suffering of his fiance's family back home would be worth the cost of interfering with the father's parental rights (because I can almost guarantee that the girl's father will not make life easy on the woman's family that remains in the Philippines).

In Silva v. Court of Appeals the original court order stood and the father was to be granted visitation every Saturday and Sunday. You can likely expect nearly the same result in this case. The exact same argument was made in that case i.e. being raised by a foreigner would be better financially and they also tacked on the charge that the father was a womanizer and a drunkard. The court basically said that neither of those charges were strong enough to sever the bond between child and parent regardless of custody or legitimacy.

[Artisan 138]

He had been involved in the child's life but had been spending less and less time with him, due most likely to the desires of the mother NOT the father.

I am now divorced from my ex- and have custody of that son, who I had adopted a few years ago. We are going through a fairly ugly custody battle right now, but it has already been determined that I will retain custody. She has expressed a desire to return to the Philippines and stay if she could take the children. The US courts won't allow a move back. But they would allow visits.

I am curious, did you get the written consent of the father prior to the adoption? If not, it may be possible your ex-wife can have the adoption overturned by pleading with the biological father to contest the adoption if it was done without his consent. That could open up a whole lot of problems for you so it is best to be ahead of the game if it comes up.

[Grant PDX 183]

I am curious, did you get the written consent of the father prior to the adoption?

I don't want to go offtopic too much, but it might be helpful to the OP. In our case, about 2 years after the move to the US we spoke with a family attorney about an adoption. The requirement for making an effort is to post in the newspaper for period of time, along with some other minimal effort. Not a very stiff requirement. Our local paper in Oregon was unlikely to be read by him. Anyway, the minimum requirement was pretty low.

However, since my (then) wife already had a trip planned to the Philippines soon after, our attorney wrote up a consent form. My wife hand carried it to the father who signed it. Recently I've become aware that there might have been some coercion on her part ("sign this or you'll never see him again", something like that, but the details are fuzzy). Bottom line, and hopefully I don't sound like a "monster" but my children are living with the only father either has ever known (both my adopted son and my biological son who she was pregnant with during our K-1 process) and are well cared for and happy.

Short answer to your question, yes he signed a written consent 2-3 years after the move to the US. Longer answer, it's not a legal requirement, and if it hadn't been signed it would be a long expensive process to undo the adoption and the courts would almost certainly see me as having parental rights anyway, due to the time we've been together and since his brother is under my custody anyway.

When you start talking about children in ANY move process there is difficulty. Part of the reason my custody battle has been so difficult recently is due to the fact that I have to move for my job. We had a $9,000 independent evaluation done. It was determined that a) I should have full legal custody, b) she should have signficant visitation, and c) that when I move I should take the children with me regardless of whether she moved. She was encouraged in the final report to move also, but if she didn't we would have been under a long distance parenting plan which would significantly reduce her parenting time. Call me a "monster", but my options are limited. I don't want to take the children away from their mother (she'll likely move, she has no real job or family here, just the boyfriend she moved in with the day she left me, and they may or may not remain a couple anyway). But it's been determined that it's in the best interests of the children, not just by the evaluator but it will be by the court as well (next week, YAY, finally almost over).

I don't believe in haphazardly taking the children away from one parent. But when parents live apart, which happens all the time, allowances have to be made. No, it's not ideal. But it might not be ideal for the OP to pack up and move to the Philippines either. No good answer, have to make the best of it, given that there is a plan to marry. I can give all sorts of examples of bad things people do regarding their children all the time. Not saying it's right but in this situation there's already a child of parents that are not together. That was the worst possible thing that could happen, anything else will just add to the already difficult situation.

OP, best of luck, this is not an easy path to travel.

[Laser1 63]

I don't understand why people think this is even remotely reasonable.

That's your problem if you don't understand, not the O.P.'s, or mine.

The father in this case clearly wants to be a part of his daughter's life and any man or woman that would attempt to sever that relationship is a monster and/or full of spite. The mother needs to decide what is more important to her, the daughter or her kano fiance. The OP has to decide if the suffering of his fiance's family back home would be worth the cost of interfering with the father's parental rights (because I can almost guarantee that the girl's father will not make life easy on the woman's family that remains in the Philippines).

What would the girl's father do to her family???

In Silva v. Court of Appeals the original court order stood and the father was to be granted visitation every Saturday and Sunday. You can likely expect nearly the same result in this case. The exact same argument was made in that case i.e. being raised by a foreigner would be better financially and they also tacked on the charge that the father was a womanizer and a drunkard. The court basically said that neither of those charges were strong enough to sever the bond between child and parent regardless of custody or legitimacy.

In that case, the mother had already moved to the Netherlands, so it does not matter much, until she decides to visit the Philippines.

[GaryKO 49]

We are not lawyers here, we offer an opinion based on what we think we know. My opinion based on many others that had a similar situation of a fiancee with a child born out of wedlock making that child illegitimate the law in the Philippines is very clear. "An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care."

This is not a unique situation, many women in the Philippines are single moms with kids born out of wedlock, every day at the USEM K1 and K2 visas are issued to women with illegitimate kids. The OP does not need to worry about getting consent from the father. The father cannot stop you from moving his illegitimate child out of the Philippines.

Could the father file court actions to stop the mother moving the child out of the Philippines? Yes i guess so if he had the money, but the rights of the father to his illegitimate child is limited to visitorial rights only, the changes of the father getting a "Hold Departure Order", or "Joint Custody" would be zero.

File your K2 visa application just like many others do, and don't worry about what is right or wrong. The only one that needs to make sure that they are doing with is best for the child is the child mother.

[N-o-l-a 7,167]

File your K2 visa application just like many others do, and don't worry about what is right or wrong. The only one that needs to make sure that they are doing with is best for the child is the child mother.

As the soon to be step father of such a child, he should also be considered about what is right and wrong and what is in that child's best interest.

My husband thinks of his step daughter as his own and had she had contact with her biological father would not have suggested taking her away from that.

[James and Cynthia 70]

I don't understand why people think this is even remotely reasonable. The father probably sees his daughter at least once or twice a week now if not more based on how the OP said the parents share responsibility raising the girl. In what universe would any father that loves his daughter give her up to be raised so far from home that she would lose nearly all cultural identity and attachment to her birthright (even being raised in a large Fil-Am community is still nothing like being raised in her own culture). The idea that someone would be 'better off' being raised in the US compared to the Philippines is incredibly racist (or ethnist, however the PC police word it these days). People have a right to be raised by the parents that are responsible for bringing them into this world. Thankfully the Philippine courts agree and are a bit more sane concerning family law than the US courts.

Being illegitimate and recognized has legal meaning in the Philippines for a reason. The child will bear the father's name, inherit, and have nearly all the advantages of a legitimate child. Unlike in the US a father can force his name on the birth certificate by using a public document or private written instrument acknowledging the child as his own. Also let's be clear about how the IRR (Implementing Rules and Regulations) impacts RA 9255 regarding the surname of the child. While RA 9255 states the child 'may' use the father's surname, the IRR regarding RA 9255 uses 'shall' which in effect makes it non-optional. This may be done without the consent of the mother or the child (unless the child is 18 years or older). It should also be noted that the child cannot be adopted and have her name changed without the consent of BOTH parents, legitimate or not. If the mother can prove that she exerted earnest and diligent efforts to locate the whereabouts of the biological father but without success, then the written consent is not necessary. No matter what though it is likely that this girl will forever bear the name of her father given the father's position in her life.

The father in this case clearly wants to be a part of his daughter's life and any man or woman that would attempt to sever that relationship is a monster and/or full of spite. The mother needs to decide what is more important to her, the daughter or her kano fiance. The OP has to decide if the suffering of his fiance's family back home would be worth the cost of interfering with the father's parental rights (because I can almost guarantee that the girl's father will not make life easy on the woman's family that remains in the Philippines).

In Silva v. Court of Appeals the original court order stood and the father was to be granted visitation every Saturday and Sunday. You can likely expect nearly the same result in this case. The exact same argument was made in that case i.e. being raised by a foreigner would be better financially and they also tacked on the charge that the father was a womanizer and a drunkard. The court basically said that neither of those charges were strong enough to sever the bond between child and parent regardless of custody or legitimacy.

I agree. If the father is spending time with and helping raise the child, and the father is not causing harm to the child, shame on someone for trying to take that away. Living in america is not so much better that it warrants dividing a father from his child. I hope the laws and courts in the Philippines will continue to stand up for father's rights and others will look at this from the eyes of the father.

-James

[Juliet and Steve 93]

If they were never married then the mother has sole rights to the child and can do whatever she wants.

Some years ago when I had a blooming relationship with a woman in Thailand I heard this same exact response.

In short it turned out to be absolutely wrong.

Even totally wrong in the face of:

1) The father abandoned the mother and daughter immediately upon the birth of the child

2) The father contributed nothing to the mother/daughter

3) The father never visited the daughter

4) The couple were never truly married (never registered)

Thai law is definitive--if the marriage is unregistered then the mother has FULL control over the child.

But---Thai law and American Law does not make a difference to a Demi-God Embassy who says "yes or no."

People can throw out all sorts of legal precedents but the ultimate reality is that the Consulate acts as a Demi-God outside of normal legal channels. This means that what holds true in American Courts does not relate in ANY way to how the consulate wants to act.

The Bangkok Consulate demands approval from the birth father for removal of his child even under the above situtation or a death certificate--in the abscence the child will never be allowed to leave.

Ultimately it destroyed my relatioship since the father of my then fiancee would not under any circumstances allow the daughter to leave the country. Since the daughter could never leave the country the mother would not leave the country. Since I could not work in Thailand and lacked the economic means to live there on savings in the end it, plainly speaking--decimated the relationship.

One option does exist and it may be a hand the father is playing (or not--I'm not judging) and that is pay him off. That he and she takes turns say that he is not playing this game, so perhaps in the alternative consider coming to some sort of deal where the child can return to visit the father for a few months every year or two.

Very sad and frustrating situation--I wish you luck.

Edited December 7, 2012 by Juliet and Steve

[Hank_ 9,174]

Mothers with children going through the embassy are an every day occurence, I sure their are fathers out there with most all of them, yet most all get their visas and move forward. Nothing was required from the "fathers".