Is the other parent’s consent required to file I-485 for my child after divorce?

[alex_5 0]

I’m applying Green Card through Employment (Employment-Based Immigration: Second Preference EB-2). When my Priority Date is current, I will file adjustment of status application (Form I-485) for myself and also for my child (6 years old). At the time of filing I-485, my child and I will be both present in the U.S. My child has been living with me in the USA for the past 4 years. My spouse (wife) is not a US citizen nor a Green Card holder, and has always been living in the origin country: China.

My spouse and I are having a divorce which is being judged by the Chinese court. It’s very likely the Chinese court would decide the child to continue to live with me. Chinese divorce decree would typically write something like this regarding the custody order:

“The child, born of the marriage of both parties, shall reside with the father, starting from the effective date of this judgment; the mother, shall pay child support in the amount of 2,000 Chinese Yuan to the father until the child reaches the age of eighteen.

The mother has the right to visit the child. Visitation shall take place every Sunday from 8 a.m. to 10 a.m. through video chat. The father is to cooperate with this arrangement. If the father and child travel to China or the mother travels to the USA for a short visit, the father and mother could discuss to arrange a visitation.“

In China, the above judge’s decision in writing is viewed as that I (the father) have been assigned the custody. Chinese court would not judge legal custody and physical custody separately, instead it would state that “the child shall reside with the father, the mother shall pay child support and has visitation right.”

My main questions is: when I file I-485 for myself and my child in the United States at the same time, is it required to provide my ex-spouse’s consent to file for my child? If my ex-spouse doesn’t cooperate, I am planning to submit the notarized Chinese divorce decree to prove I have the custody (although it is not explicitly stated the legal custody and physical custody in the divorce decree), would that be a good alternative?

More information: For the past 4 years (from the child age 2 to age 6), I have been responsible for the child’s daily routines/needs, including providing meals, educating, accompany, school selection, school communication, medical checkup, doctor visit, and all other things as needed during early childhood. I have also been responsible for all the child’s related expenses including living/school tuition/enrichment classes/medical expenses. The child has been learning and attending preschool, kindergarten, and now in Grade 1 here. The child is healthy, happy and enjoys the life in the United States.

By taking consideration of all above, can I make a strong case for the green card filing for my child without the ex-spouse’s consent? Anything else I could do? Greatly appreciated your help and input!

[Boiler 45,445]

Too late now but a US Court divorce would have been simpler.

 

To me it sounds like you are ok but I am not a lawyer certainly not familiar with Chinese law

[Ontarkie 14,216]

3 hours ago, Boiler said:

Too late now but a US Court divorce would have been simpler.

 

To me it sounds like you are ok but I am not a lawyer certainly not familiar with Chinese law

A US court cannot grant a foreigner custodial rights. The child's birth country will always have jurisdiction unless both parent are in the US. 

[Ontarkie 14,216]

4 hours ago, alex_5 said:

I’m applying Green Card through Employment (Employment-Based Immigration: Second Preference EB-2). When my Priority Date is current, I will file adjustment of status application (Form I-485) for myself and also for my child (6 years old). At the time of filing I-485, my child and I will be both present in the U.S. My child has been living with me in the USA for the past 4 years. My spouse (wife) is not a US citizen nor a Green Card holder, and has always been living in the origin country: China.

My spouse and I are having a divorce which is being judged by the Chinese court. It’s very likely the Chinese court would decide the child to continue to live with me. Chinese divorce decree would typically write something like this regarding the custody order:

“The child, born of the marriage of both parties, shall reside with the father, starting from the effective date of this judgment; the mother, shall pay child support in the amount of 2,000 Chinese Yuan to the father until the child reaches the age of eighteen.

The mother has the right to visit the child. Visitation shall take place every Sunday from 8 a.m. to 10 a.m. through video chat. The father is to cooperate with this arrangement. If the father and child travel to China or the mother travels to the USA for a short visit, the father and mother could discuss to arrange a visitation.“

In China, the above judge’s decision in writing is viewed as that I (the father) have been assigned the custody. Chinese court would not judge legal custody and physical custody separately, instead it would state that “the child shall reside with the father, the mother shall pay child support and has visitation right.”

My main questions is: when I file I-485 for myself and my child in the United States at the same time, is it required to provide my ex-spouse’s consent to file for my child? If my ex-spouse doesn’t cooperate, I am planning to submit the notarized Chinese divorce decree to prove I have the custody (although it is not explicitly stated the legal custody and physical custody in the divorce decree), would that be a good alternative?

More information: For the past 4 years (from the child age 2 to age 6), I have been responsible for the child’s daily routines/needs, including providing meals, educating, accompany, school selection, school communication, medical checkup, doctor visit, and all other things as needed during early childhood. I have also been responsible for all the child’s related expenses including living/school tuition/enrichment classes/medical expenses. The child has been learning and attending preschool, kindergarten, and now in Grade 1 here. The child is healthy, happy and enjoys the life in the United States.

By taking consideration of all above, can I make a strong case for the green card filing for my child without the ex-spouse’s consent? Anything else I could do? Greatly appreciated your help and input!

If the court order mentions living in the US it will solve a lot of issues. 

[mam521 2,058]

Is your soon to be ex-wife oppositional to signing something stating she understands and agrees that the child will live with you and receive US permanent residency rights?  

 

I suspect, based on what you've said, that you'd be fine.  But if push comes to shove, her signing a lawyer notarized declaration could serve as back up.  

 

My ex and I don't have a formal, court ordered custody agreement.  We wrote an informal parenting agreement which could be filed in court if need be.  He wrote a letter stating he knew and supported Kid1 and Kid2 obtaining US PR, had it lawyer notarized and sealed and the Consulate accepted it with our informal parenting agreement.  

[Pinkrlion 2,715]

If the custody agreement says you have full custody is needed when you file.