Will my baby need to leave the US?

[LA213 3]

Hello,

 

My soon to be ex wife and I had filed for adjustment of status via marriage to USC (me) and we haven't had our interview yet.  Unfortunately we have decided to get a divorce,  Is there anything I can do to allow her to stay in the country so we can have joint visits with my baby son or if she goes back to her home country, will she automatically get full custody of our baby? She is from an english speaking country as well.  How will the courts or immigration determine who gets to live with the baby most or full time?

 

Thank you

 

[milimelo 4,533]

Unless she does AOS through you she won’t be allowed to stay. 
 

child custody is family court issue. 

[LA213 3]

Just now, milimelo said:

Unless she does AOS through you she won’t be allowed to stay. 
 

child custody is family court issue. 

Yes she did do AOS through me. But if we get a divorce, doesn't that mean she still has to leave? Will our baby have to go with her?

[geowrian 22,337]

19 minutes ago, LA213 said:

Yes she did do AOS through me. But if we get a divorce, doesn't that mean she still has to leave? Will our baby have to go with her?

She did not do AOS through you. She is doing AOS through you. AOS must complete for her to stay.

If you have divorced or legally separated, then the relationship for the I-130 is no longer valid. No valid I-130 = no basis for an I-485 = AOS must be denied. No AOS = no means to stay.

If you are not legally divorced or separated yet, then technically the I-130 relationship remains intact. Although I would not be surprised if there was very heavy scrutiny if the marriage is bona fide.

 

If the marriage is under 2 years old at the time of AOS approval, she will need to do ROC. ROC with a divorce shortly after getting the green card may raise significant questions again.

 

You must remain an I-864 sponsor for her AOS to complete. Keep in mind this will be a commitment that could last a lifetime, and does not terminate with divorce. It may be considered as part of any support she receives in divorce. Seek a good divorce attorney.

 

Her immigration status (or lack thereof) is not a consideration for family court.

She would need a court order or your support to take the child out of the US (whether she leaves voluntarily or is removed).

Enforcing custody and visitation across international borders is difficult. For instance, if the child goes with her back to her home country, a US court ruling can't compel her in her home country to do anything. This can get messy quickly. Seek a good attorney again.

Edited August 29, 2020 by geowrian

[aaron2020 11,651]

If you divorce, there is no basis for her to continue the AOS and there is no way for her to stay.  She would need to leave the US.  Having a USC child would not allow her to stay either; she would still need to leave the US.

 

On the issue of custody, either the two of you come to an agreement or a family court will decide what's in the best interest of the child which could be custody with you in the US or custody with her in her country.  Immigration has no role or bearing on who gets custody - it's not a consideration.  

[LA213 3]

2 hours ago, geowrian said:

She did not do AOS through you. She is doing AOS through you. AOS must complete for her to stay.

If you have divorced or legally separated, then the relationship for the I-130 is no longer valid. No valid I-130 = no basis for an I-485 = AOS must be denied. No AOS = no means to stay.

If you are not legally divorced or separated yet, then technically the I-130 relationship remains intact. Although I would not be surprised if there was very heavy scrutiny if the marriage is bona fide.

 

If the marriage is under 2 years old at the time of AOS approval, she will need to do ROC. ROC with a divorce shortly after getting the green card may raise significant questions again.

 

You must remain an I-864 sponsor for her AOS to complete. Keep in mind this will be a commitment that could last a lifetime, and does not terminate with divorce. It may be considered as part of any support she receives in divorce. Seek a good divorce attorney.

 

Her immigration status (or lack thereof) is not a consideration for family court.

She would need a court order or your support to take the child out of the US (whether she leaves voluntarily or is removed).

Enforcing custody and visitation across international borders is difficult. For instance, if the child goes with her back to her home country, a US court ruling can't compel her in her home country to do anything. This can get messy quickly. Seek a good attorney again.

So she can't do anything to take the baby away from me?

[LA213 3]

1 hour ago, aaron2020 said:

If you divorce, there is no basis for her to continue the AOS and there is no way for her to stay.  She would need to leave the US.  Having a USC child would not allow her to stay either; she would still need to leave the US.

 

On the issue of custody, either the two of you come to an agreement or a family court will decide what's in the best interest of the child which could be custody with you in the US or custody with her in her country.  Immigration has no role or bearing on who gets custody - it's not a consideration.  

So no matter what our child will have to live in two countries?

[AstoriaAOS 33]

23 minutes ago, LA213 said:

So she can't do anything to take the baby away from me?

She has a say in what happens to the baby, as do you.

 

22 minutes ago, LA213 said:

So no matter what our child will have to live in two countries?

It depends. As mentioned previously, this is an issue for you to settle with your child’s mother, and if you two can’t come to an agreement, it will be decided by family court (not immigration).

Edited August 29, 2020 by AstoriaAOS

[aaron2020 11,651]

58 minutes ago, LA213 said:

So she can't do anything to take the baby away from me?

She can seek sole custody in family court.  

 

58 minutes ago, LA213 said:

So no matter what our child will have to live in two countries?

If the two of you can't agree on custody, then a family court will decide.  The court could decide to grant sole custody to either of you because the two of you can't live in the same country.  The court could decide on visitations and returning the child for limited time.

You may want to consult a family law attorney,  

[JeanneAdil 6,605]

You do not post your state and this is important

In most states it is illegal for either parent to even take a child out of the state without the consent of the other 

look up your state's laws (better yet consult a lawyer for this one)

 

Parental kidnapping or parental abduction is defined as the concealment, taking, or retention of a child by his parent in violation of the rights of the child's other parent or another family member. Violated rights may include, for example, custody and visitation rights.

[Daisy.Chain 317]

I agree that this could get messy very fast. 

 

Short-term, does your child have a passport? If not, the child has no way to leave the US (until getting one). Your wife would need a letter from you to take the child out of the country, but I know of cases where this was not enforced. (Fortunately,  no one I know was trying to parentally abduct the child!). If it is a concern she might do this without your consent, you could request a child's passport issuance alert to flag the passport.

 

I hope you can work things out civilly with your wife. 😕

[Lemonslice 4,936]

18 minutes ago, Daisy.Chain said:

I agree that this could get messy very fast. 

 

Short-term, does your child have a passport? If not, the child has no way to leave the US (until getting one). Your wife would need a letter from you to take the child out of the country, but I know of cases where this was not enforced. (Fortunately,  no one I know was trying to parentally abduct the child!). If it is a concern she might do this without your consent, you could request a child's passport issuance alert to flag the passport.

 

I hope you can work things out civilly with your wife. 😕

While not having a US passport helps, it does not prevent taking the child out of the country.  The child might be eligible to another citizenship, and passport.  Entry

by land to Canada is possible with a birth certificate for children under 16...  plus other many other ways.

 

OP should try to find an agreeable solution, or work with a lawyer ASAP.  I remember some post on VJ where they decided to adjust status to be able to coparent. But I think the ex had remarried, and they only kept their affidavit of support.

 

Best of luck.

[Lucky2Lucky 2,526]

It’s such a quick timeframe to get divorced from marriage to AOS is a few months? Or did your spouse come here on a tourist visa and you adjusted status?

 

Like others posted your main concern is the kid- find an attorney ASAP. This is NOT a DIY situation.

[geowrian 22,337]

2 hours ago, Lemonslice said:

 I remember some post on VJ where they decided to adjust status to be able to coparent. But I think the ex had remarried, and they only kept their affidavit of support.

That would have had to been an AOS from K-1 case. Divorce does not terminate the I-129F. Divorce does terminate an I-130 for a spouse.

[Boiler 45,826]

MOST unlikely a US court would allow the child to leave their jurisdiction. Assuming the OP does not agree.