Custody after Deportation of Ex-spouse

[Chocobo 196]

It takes a lot for a judge to authorize the moving of a child from a situation/environment they have been living in.  Whenever possible, the Courts prefer to maintain the status quo for the benefit of the child(ren).  

 

Forgive me, I am unfamiliar with your case and your history, so take this with a grain of salt.

 

The older the child, the more opportunity there has been for a routine/environment to have been established and the Court will err on the side of maintaining that.  If there is an issue of domestic violence against your ex, that is more pros on your side than hers.  Whoever is the primary caregiver will get more consideration than the parent who is not.  

 

The attorney is likely talking big to scare you, but take the threat seriously.  Document document document.  Talk with a lawyer.  

[HappyAndIKnowIt 24]

21 hours ago, Georgia16 said:

Yes exactly just doesn’t seem like op thinks there are options for her and there still is. 

 

I don't know if I have previously said this, but she has filed a divorce waiver petition.  We spoke on the phone with USCIS and they seemed to indicate that was an error, as we are not divorced yet and the denial letter is supposedly the authority for what steps she can take.

 

Right now, we're waiting for possibly an RFE on the divorce waiver or an NTA.  I suppose the divorce waiver being flat out denied is also a possibility.  I'll update when we find out how this progresses.

 

8 hours ago, Going through said:

With a court order in place, yes it can happen.

 

Likewise, she is probably concerned with never being able to see her child again should she not be able to enter the US.

 

Both of you take a chance that the other parent may not be accommodating when it comes to child visitation...Even with a court order--there is no guarantee (to you) that she will send the child back to the US, just as there's no guarantee (to her) that you will send the child to the Ukraine.  People have been known to ignore court orders/custody settlements no matter what they agreed to prior.  

 

If her ROC is approved in the future---all the better for the child involved, who can enjoy both parents more equally.

I wish the circumstances were such that I could trust she would not attempt to take my son out of the country in the future, but there is no way to prevent that.  It would be my preference that my son grows up with his mother nearby, but I'm not sure how out of whack this is going to get.

 

I DEFINITELY don't want my son ordered out of the country, even if just for visitation, as he would not be returned, that I know.

[Georgia16 2,858]

1 minute ago, HappyAndIKnowIt said:

 

I don't know if I have previously said this, but she has filed a divorce waiver petition.  We spoke on the phone with USCIS and they seemed to indicate that was an error, as we are not divorced yet and the denial letter is supposedly the authority for what steps she can take.

 

Right now, we're waiting for possibly an RFE on the divorce waiver or an NTA.  I suppose the divorce waiver being flat out denied is also a possibility.  I'll update when we find out how this progresses.

 

I wish the circumstances were such that I could trust she would not attempt to take my son out of the country in the future, but there is no way to prevent that.  It would be my preference that my son grows up with his mother nearby, but I'm not sure how out of whack this is going to get.

 

I DEFINITELY don't want my son ordered out of the country, even if just for visitation, as he would not be returned, that I know.

Got denied because she couldn’t give them the divorce decree but she can file again 

[Georgia16 2,858]

So you are saying if she gets deported she would never see the child again because she would not get a visitor visa after a deportation you are setting the court up to have to give her the child.  Sounds like you should do everything for her to stay. 

[Boiler 45,486]

We?

[Going through 5,671]

2 hours ago, HappyAndIKnowIt said:

Right now, we're waiting for possibly an RFE on the divorce waiver or an NTA.  I suppose the divorce waiver being flat out denied is also a possibility.

Most likely the RFE on the divorce waiver---which can easily be responded to.  The divorce waiver being denied does not happen commonly.  USCIS doesn't care that the marriage broke down later, or even who was at fault.  All they care about is whether she can prove she ENTERED into the marriage with bonafide intent.  Easily proven with past co-mingling of finances and tax returns, for a start.  Not to mention all the proof submitted with the previous K1 which swore (and showed a bonafide relationship in the beginning leading up into marriage).  And all the AOS paperwork/evidence which swore and showed a bonafide marriage up until it broke down.  That still carries weight with the IO looking through her entire immigration file up to that point.

[HappyAndIKnowIt 24]

4 minutes ago, Going through said:

Most likely the RFE on the divorce waiver---which can easily be responded to.  The divorce waiver being denied does not happen commonly.  USCIS doesn't care that the marriage broke down later, or even who was at fault.  All they care about is whether she can prove she ENTERED into the marriage with bonafide intent.  Easily proven with past co-mingling of finances and tax returns, for a start.  Not to mention all the proof submitted with the previous K1 which swore (and showed a bonafide relationship in the beginning leading up into marriage).  And all the AOS paperwork/evidence which swore and showed a bonafide marriage up until it broke down.  That still carries weight with the IO looking through her entire immigration file up to that point.

 

The divorce waiver is actually a "good faith, no fault" waiver.  According to the Adjudicator's Field Manual, the failure to file a joint petition (the divorce) must not be even partially the fault of the petitioner.  Also according to the AFM, there is a different standard of review for the waiver applications.  They are reviewed with discretion, whereas the joint petitions are reviewed based strictly on a factual basis.  As I understand this, it means, for example, having a child together, but demonstrating intent not to involve me in the parenting of that child is evaluated differently.  On a joint petition, we had a child together, that box is checked, end of story.  Good evidence.  On a waiver petition, the officer can also consider her actions preventing my involvement in parenting that child.  So, it could be viewed that yes, she had a child, but in this situation it does not provide evidence of a bona fide marriage because she preventing me from parenting him and filed for divorce nearly immediately after his birth, with the plan to return to Ukraine with the child.  This difference in how the evidence is considered was pointed out by the FDNS officers who interviewed me, although they didn't spell it out as "factual" vs "discretionary".  They referred to it as a higher standard of proof type of situation.  There is a ton of surrounding evidence, such as the mother being here and everything they have done with the police that leads me to believe they will deny her divorce waiver.  This is not an ordinary divorce waiver case.

 

2 hours ago, Boiler said:

We?

 

I know the divorce waiver petition is hers without me, but believe me, I am waiting to find out what's going on also.

 

2 hours ago, Georgia16 said:

So you are saying if she gets deported she would never see the child again because she would not get a visitor visa after a deportation you are setting the court up to have to give her the child.  Sounds like you should do everything for her to stay. 

 

I disagree that I am setting the Court up to have to give her the child.  This is a terrible situation without an even close to happy ending on the horizon.  Her plan was for me to lose contact with my son as she would have him with her family in Ukraine.  They prevented me access in my own house, you think I will have better access in Ukraine ?  I don't want to prevent her access to her son, but I will fight with everything I've got to prevent him from being taken or sent to Ukraine.  Even facing everything she is up against, she has not budged one bit to find a solution.  And her mother is still here.  That is a constant reminder to USCIS that she has no regard for immigration laws.  Not a good look.

[Boiler 45,486]

Well we will have to agree to disagree on the removal of conditions, certainly nothing you have posted suggests she will have an issue. And anyway you are not party to the process, so unless she tells you, you will never know the outcome.

 

On the Divorce and Child issue now that is something else and hopefully you have appointed a good Divorce Lawyer.

[Going through 5,671]

The  mother being here, and your ex wife filing for ROC are two separate things entirely.  Your ex can't be denied ROC based on your ex MIL overstaying her tourist visa.  Her mother being here is not a "constant reminder to USCIS that she has no regard for immigration laws"---her mother is an adult who made her own decisions, nothing to do with your ex wife's eligibility to be approved.   Your wife refiling the ROC properly shows that she does have regard for immigration laws  instead of just living under the radar like the mother-in-law.   We had another member here who's MIL came to visit and then never left.  Didn't affect her daughter's immigration journey at all.

 

IO is more concerned about evidence showing a bonafide marriage---I have yet to hear of them denying a decision based on what's written in someone's divorce decree (barring anything indicating a fraud marriage)...my point being they are not there to judge any custody issues, just the i-751.

 

As Boiler mentioned---hopefully you have a good divorce lawyer.

[Going through 5,671]

9 hours ago, HappyAndIKnowIt said:

They prevented me access in my own house, you think I will have better access in Ukraine ?  I don't want to prevent her access to her son, but I will fight with everything I've got to prevent him from being taken or sent to Ukraine.  Even facing everything she is up against, she has not budged one bit to find a solution. 

In all fairness, she's got somewhat of a gun held to her head...so hard to think out a solution with that sometimes.

 

She has an ex husband who (either in her head, or in reality) somewhat hopes her i-751 is denied, and that then she is deported without her child.  

 

If she gets deported then she cannot enter the US for quite a period to see her child.  And she cannot guarantee you will send the child to the Ukraine--like you said you will fight with everything you've got to prevent visitation to her as well--perhaps even going so far as to mention something along those lines to her, which would stick in her head naturally.  What other option are you giving her, then?  If she cannot enter the US, obviously there's only one other solution I can think of to her exercising her visitation rights.  

 

She's also living in the same house as her ex husband as a constant reminder of these things, and under quite a bit of pressure along with normal pressure of being a new mother caring for a baby.  It's a shame she can't get her own physical space in this---might be a bit easier to be able to sort her head out and then try to come up with workable solutions with some distance between you two.  Might be better for you, too.

Edited December 24, 2019 by Going through

[Georgia16 2,858]

Agree with the two above. Also that she was the one that started the divorce is also okay it's not like the petitioner for ROC (the immigrant) are not allowed to file for a divorce.

[HappyAndIKnowIt 24]

4 hours ago, Going through said:

In all fairness, she's got somewhat of a gun held to her head...so hard to think out a solution with that sometimes.

 

She has an ex husband who (either in her head, or in reality) somewhat hopes her i-751 is denied, and that then she is deported without her child.  

 

If she gets deported then she cannot enter the US for quite a period to see her child.  And she cannot guarantee you will send the child to the Ukraine--like you said you will fight with everything you've got to prevent visitation to her as well--perhaps even going so far as to mention something along those lines to her, which would stick in her head naturally.  What other option are you giving her, then?  If she cannot enter the US, obviously there's only one other solution I can think of to her exercising her visitation rights.  

 

She's also living in the same house as her ex husband as a constant reminder of these things, and under quite a bit of pressure along with normal pressure of being a new mother caring for a baby.  It's a shame she can't get her own physical space in this---might be a bit easier to be able to sort her head out and then try to come up with workable solutions with some distance between you two.  Might be better for you, too.

Just about two weeks ago, she and her mother both moved to an apartment.  About her options, she has the domestic violence case, which she sees as the big threat to her status, which does not have to be prosecuted.

[Going through 5,671]

14 minutes ago, HappyAndIKnowIt said:

Just about two weeks ago, she and her mother both moved to an apartment.  About her options, she has the domestic violence case, which she sees as the big threat to her status, which does not have to be prosecuted.

Are you saying that you have told her you would drop the charges if she left without the child/didn't fight for custody?

Edited December 24, 2019 by Going through

[Going through 5,671]

To add to the above question (since editing time ran out)...if so, you made a mistake with that one.

[HappyAndIKnowIt 24]

1 hour ago, Going through said:

To add to the above question (since editing time ran out)...if so, you made a mistake with that one.

No, I didn't do that.  But victims of domestic violence change their minds about testifying all the time for any number of reasons.  She probably doesn't believe me when I say I would prefer she not be deported, but it's true.  I just want to prevent my son from being sent to Ukraine.