not etting married and returning to phils. in k1 visa with my u.s citizen baby

[DavenRoxy 1,073]

It's a tough call. I think in a court battle, she would be granted permission to take the child back. But she has nether time nor resources to fight that battle.

The crux is... we don't yet know WHY the lack of marriage. Or who wants it.

What if the father is a diabolical fellow, and knowing US abduction laws, tricked her into doing a K-1/K-2 with the intention of getting them here, then refusing to marry her just to "trap" the child? With no intention of every completing the K-1 process. Fraud? Would he win the battle? Hmmm...

We need more info.

[Villanelle 4,122]

Here is my take.

We don't know the full situation. Is the father refusing to marry her, which essentially is asking her to leave? If so, this isn't any different than what some here are accusing the mother is doing in taking the child with her. He is essentially taking her child away from her in not marrying her and making her go back as a result.

If the mother is the one refusing to marry, then I think she is at fault for doing so and wanting to leave the father and taking the baby.

So I think it depends on the story behind this failed marriage.

In no case, however, do I suggest anyone break any laws here. The best she should do is get some legal support. A solution will likely be found in court depending on who is breaking the promise to marry here, as it is obvious both cannot share custody.

Actually the OP did provide a reason. But everyone seems to be glazing over it because the debate about who is a better parent/ is it wrong to deny one parent/ etc etc is so attention grabbing.

The OP said she came on a K1 visa and has decided to not marry the fiance because of verbal abuse on the part of the fiance. It is also why she believes their child should return home with her to the PI.

Because the child is a dual citizen unfortunately she can not remove the child from the US w/o his permission (which he will not give- big surprise if he is an abuser) and while she may have a PI passport for the child and could potentially breeze through airport security, because the chances that they would stop a mother with a PI passport along with a child with a PI passport traveling to the PI well, in all honesty, its very slim for them to ask who is the father, does he know you are taking the child there? (Its just not going to happen.)

Her doing so though is considered international kidnapping as the child is a US citizen and as aaron explained, she agreed to move the child to the US when she brought him here and cant one sidely remove him now, abuse or no abuse the laws regarding custody and the channels you must go through are the channels you must go through.

However the fact that international kidnapping is even on the table makes you realize what a desperate situation this really is.

Basically the OP is in a situation where the childs custody needs to be determined by a court because the parents can not agree on it and unfortunately the mother is facing a deadline where her legal status is going to be coming to an end in the US.

She has a few choices- A. let her legal status run out and fight for custody/the right to remove the child while she is illegal, or B obtain status and fight for custody and the right to remove the child. (or the unpopular C do nothing and flee the US w/o permission)

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Starting with C- taking the child with out the fathers consent. As explained it is illegal, probably would make it through airport security and make it home as long as you had both PI passports but after that, who knows what legal ramifications would follow. (Someone mentioned your government may not 'protect you' once you are back. I have no idea about that. I have no idea if the father would pursue charges against you. I have no idea if he would pursue getting custody. Even if he didnt and nothing was ever to come of it, it still doesnt change the fact that a crime was committed when you took the child and left. Getting away with a crime doesnt mean the crime didnt occur.

As mentioned how to obtain status (B) getting married would open up a few more avenues. However it would not give you an instant ticket back home. It would allow you to file for either a joint AOS with your spouse (which when its approved in apx 9 months you would have a greencard) You would be legal in the US until then, however if at anytime your spouse pulls the support on it, youre screwed and out of status again. Or after the marriage file for VAWA on your own if you could prove the abuse. The VAWA process is a long one. Youd be looking at about 18 months for a greencard in that.

However since you made no mention of seeking a greencard or remaining in the US and your ultimate goal it seems is just to return home and take the child with you, it may be in your best interest to marry and subsequently divorce and have custody of the child handled in the divorce. Marriage would give you a way to file for VAWA, which once you do, youll have status. You could then file for divorce and custody and once you have status, you dont have to complete the long VAWA process. You would be free to return home. However youd have to ensure that your custody orders from the court allow for you to remove the child. Certain courts wont allow it. Its going to depend on how much resistance the father puts up. Ive seen orders written where one parent has complete control and can go and live anywhere they want and others that are the complete opposite. The one parent is locked into living in a specific school district and visitation is on a strict schedule. So you may be designated the primary parent and caretaker but still not be allowed to return home with the child.

Another option for obtaining status w/o marrying the father would be to trying to obtain a U visa, as marriage may not be an option. I mean it takes two people to get married and he may not be willing to get married at this point- who knows. To qualify for VAWA you do need to be married, to qualify for the U visa, you dont need to be. You do need to be a victim of domestic violence though. And showing you suffered substantial mental abuse as the result of a criminal activity (domestic violence) qualifies you. However U visas are limited in quantity and there are a bunch of other rules that go along with it. He would have to be arrested for domestic violence and prosecuted for it. You have to aid in the prosecution and the prosecution staff needs to support your application.

Or finally do nothing in regards to immigration (A) Let your legal status simply run out by not marrying in the 90 day window and not being able to file for VAWA, not file for a U visa, really take no steps towards obtaining status. Attempt to file for custody through the courts or through a mediator while being out of status, or work on getting him to sign a document that you get notarized stating you have permission to take the child back overseas..

If you do go to family court, family courts have little interest in the immigration status of the parties involved. All they care about is whats in the best interest of the child. However it is in your interest to think about your status in the US. There are risks involved in being illegal and in accumulating overstay. While it wont effect you in family court, it will effect other areas of your life and your future.

Going back to the family court though, I really have no idea though how that would play out. Your ultimate goal in it is to have custody awarded to you (whether you arrive in family court through divorce proceedings or through alternate means {two single people seeking custody arrangements} you want full custody and the right to remove your child from the US. You are going to need a qualified attny. This is not something you want to handle yourself. And you need to explain to your attny your plans. You do not want to come right out and say you want the wording 'the right to remove the child" written in to the agreement. Something direct like that would probably enrage the father and cause him to object. They have ways of 'cleverly disguising' it. Where your attny would request something like full custodial authority and discretion. It will mean the same thing (gives you the right to leave), but just wont be as in your face about it. The father may not object to that because he probably wouldnt realize what that wording entails.

Basically if you go into a court and start saying things like I plan on removing the child and I want permission, its going to be hard to get. Youd have to truly demonstrate that it is in the childs best interest to leave the US, which means little to no contact with the father. Thats very hard to prove. Youd have a much easier time proving you are the better parent and gaining full custody with no limitations on it. Once you have it you are then free to do what you want, which includes moving where you want because the court gave you that authority to decide whats best for the child. So if that involves going back to the PI, so be it.

[Bugs 455]

In short, lawyer time.

[biaobiao 40]

OP if the child has US and PI passport, you might want to seek help with PI embassy too. maybe they can help. the child is a Filipino too. it may be true that US law prevails since you are in the US, however PI law also exist and MAY be applicable. from what i know, the mother has the sole custody if the child is illegitimate according to PI laws.

you did enter US with the baby..

i would suggest, like the others, to contact a lawyer and additionally check with PI embassy too.