Fiance's ex-husband being difficult

[ky-mar 0]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

[English Muffin 59]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

It should have no bearing on HER approval. It will likely stop her from bringing her daughter with her though.

Gillian

Edited October 20, 2007 by English Muffin

[Caladan 19]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

My question is 'to which does the 'her' refer'? It won't be a problem for your fiancee's petition, but it stands a good chance, on the assumption that he has parental rights over the little girl, of causing problems for her daughter's visa.

[pushbrk 12,898]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

A divorced woman doesn't need her ex-husband's permission to immigrate to the US but unless the terms of the divorce and applicable law say she has full custody of the child with no restrictions on residence, the child's father's permission is needed for the child to immigrate and potentially, even to obtain a passport.

[bundy_138 0]

It is my understanding that the father must give his consent for the minor child to leave the foreign country. I guess it would also depend on the laws of the country. My fiance is from Colombia and you do need permission from the parent. I am no lawyer, so don't take my advice to heart. Check the laws for you SO's country.

Bundy

[sj5 4]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

I hope this is correct.

Child Custody Law: Under the Brazilian Civil Code, married parents have equal rights of custody to their minor children. Legal guardianship goes automatically to a mother when the child is born out of wedlock, unless the father files for custody with a family court. While parents share a presumption of equal rights of custody, the U.S. Embassy in Brasilia notes that bias based on gender or nationality does occur. Mothers are often given preference in custody cases involving small children or girls and a Brazilian parent is favored over a foreign parent. Divorce and custody disputes are not uncommon in Brazil. The U.S. Embassy in Brasilia, however, feels that compared to other court processes, family court cases are resolved in a relatively short period of time. Parents seeking the recognition of U.S. custody orders can initiate a process called homologation, which consists of registering the U.S. decision in Brazil. The process is very lengthy and ultimately must be upheld by a Brazilian court.

Right of Visitation: Brazilian courts grant visitation rights to parents residing outside of the country. The specifics of visitation are determined by a divorce decree or custody order. Parents seeking to enforce visitation rights already granted by a foreign or Brazilian court order may do so directly with a Brazilian court or through the Hague Convention. Additionally, parents may initially seek visitation or access rights through the Hague Convention. For further explanation on pursuing visitation or access rights through the Hague Convention please review the section on the Convention below.

Criminal Aspects: Under Brazilian law, parental abduction is a crime when committed within Brazil and both parents are Brazilian. An international parental abduction, involving a Brazilian parent taking a child to Brazil in interference with a foreign parent’s custodial rights, is not considered a crime. Additionally, the Brazilian Constitution prohibits the extradition of its own nationals, preventing a taking parent of Brazilian nationality from being extradited for parental kidnapping.

Citizenship/Passports: If one of the parents of a child is a Brazilian citizen, then the child is a Brazilian citizen, regardless of place of birth or any other citizenship that may be possessed by the child. Children born in the U.S. may travel to Brazil on a U.S. passport and be documented as Brazilian citizens upon arriving in Brazil. It is also possible for children born in the U.S. to be registered and documented as Brazilian citizens by a Brazilian Consulate in the U.S., allowing the child to travel out of the U.S. on a Brazilian passport. All children born in Brazil, except those born to people on the diplomatic blue list, are Brazilian citizens.

Under Brazilian law, neither parent can travel alone with a child without the written consent of the absent parent or a court order granting either sole custody to the traveling parent or permission to travel with the child. This applies to both domestic and international travel and includes married parents. Additionally, both parents’ consent is necessary for the issuance of a Brazilian passport.

In order for a parent to request that a Brazilian passport not be issued to their child, he/she must petition a family court in Brazil and provide an explanation as to why the passport should not be issued to the child. If a passport has already been issued, the parent may request that a judge take possession of the passport and not release the passport to either parent. When a judge receives a petition for the return of a minor under the Hague Convention, the court seizes the travel documents of the child and the abducting parent and retains the documents until a final decision is issued.

Hague Convention on the Civil Aspects of International Parental Abduction: The Hague Convention on the Civil Aspects of International Parental Abduction (the “Hague Convention”) came into force between the United States and Brazil on December 1, 2003. Therefore, Hague Convention provisions for return or access would apply to children abducted or retained after December 1, 2003. Parents and legal guardians of children taken to Brazil prior to December 1, 2003, may still submit applications for return or access to the Brazilian Central Authority in some cases. All countries party to the Hague Convention have a Central Authority that is responsible for processing Hague applications.

1. Do I qualify to apply under the Hague Convention? You may qualify to apply under the Hague Convention if:

• Your abducted/retained child is currently under age 16;
• Your child was habitually resident in the U.S. prior to the retention/abduction;
• Your child was retained in/abducted to Brazil after the Hague Convention entered into force on December 1, 2003; and
• You had and were actually exercising a “right of custody” at the time of the abduction/retention. (You do not need to have a custody order to begin the application process).

2. Who is Brazil’s Central Authority? What is their role? In 2001, a Presidential Decree designated the Office of the

Special Secretary for Human Rights as the Brazilian Central Authority. The Central Authority is responsible for establishing proper procedures to guarantee the immediate return of children to their habitual residence. The Central Authority receives Hague applications submitted by parents seeking the return of or access to their children in Brazil and ensures that the application is filed with the proper court. Additionally, the Central Authority serves as a point of contact for the left behind parent and/or their attorney, the foreign Central Authority and the courts for purposes of obtaining information on the implementation of the Hague Convention in Brazil and the status of pending cases.

The Central Authority is located at Secretaria de Estado dos Direitos Humanos, Esplanada dos Ministerios, Edificio Sede, sala 212 70064-900 Brasilia. The international telephone number is 55-61-3-429-3481 and the fax number is 55-61-3-226-7980.

3. What is the role of the Office of Children’s Issues?

The Office of Children’s Issues (CI) is the Central Authority in the United States. CI is the primary point of contact on international parental child abduction cases. We are prepared to assist in coordination on all aspects of these cases.

The Office of Children’s Issues can:

• Assist parents in filing a Hague Convention application with foreign authorities for access to/return of the child;
• Provide the left-behind parent with information on the country to which the child was abducted, including the operation/implementation of the Hague Convention in Brazil, its legal system, family laws, and a list of attorneys there willing to accept American clients;
• Provide a point of contact for the left-behind parent at a difficult time;
• Monitor judicial or administrative proceedings overseas; • Assist parents in contacting local officials in foreign countries or contact them on the parent's behalf;
• Provide information concerning the criminal aspects of the case including the use of federal and state criminal warrants against an abducting parent, passport revocation, and extradition from a foreign country to effect return of a child to the U.S.;

  and

• Alert foreign authorities to any evidence of child abuse or neglect.

The Office of Children’s Issues cannot:

• Intervene in private legal matters between the parents;
• Enforce an American custody agreement overseas (U.S. custody decrees are not automatically enforceable outside of U.S. boundaries);
• Force another country to decide a custody case or enforce its laws in a particular way;
• Assist the left-behind parent in violating foreign laws or reabducting the child to the United States;
• Pay legal or other expenses;

  or

• Act as a lawyer or represent parents in court.

4. What are my rights/responsibilities?

As a left-behind parent, your rights include the following contact from the Office of Children’s Issues:

• Regular updates regarding the status of your child’s case;
• Consultation regarding the intricacies of processing your child’s case;
• Timely response to your calls and faxes; and
• A realistic assessment of your chances for obtaining the return of your child.

Your responsibilities include:

• Providing costs associated with your child’s case;
• Retaining and maintaining contact with your lawyer(s);
• Keeping the Office of Children’s Issues apprised of developments in your child’s case;
• Providing requested information in a timely manner;

  and

• Providing document translations when necessary.

5. What attachments/documents must I submit along with the Hague application? Do I need to get them translated?

Instructions: To apply for assistance under the Hague Convention in Brazil, you will need to submit the following:

A) A completed Hague application form. This form is provided by the U.S. Central Authority and may be obtained from the Office of Children’s Issues or downloaded off our web site. Please refer to Appendix 2 of the U.S. Central Authority’s brochure, “International Parental Abduction” for instructions on completing the application form.

B) Originals or certified copies of the child/ren’s birth certificate(s), your marriage certificate, and divorce decree as appropriate.

C) A certified copy of the custody order in effect when the child was taken to Brazil or a copy of the state law that establishes your right to custody, and any other agreements regarding custody or access. Note: It is not necessary to have sole custody to apply for assistance under the Hague Convention. If no custody order existed at the time of abduction/wrongful retention and your state law is silent as to a parent’s custody rights, an affidavit of law from a U.S. attorney may be acceptable.

D) Photos of the child and taking parent. These photos will not be returned to you.

E) Translation into Portuguese for all documents in English, including the Hague application form, birth/marriage certificates and court documents. Translations do not have to be certified.

Please remember:

• The U.S. Central Authority does not charge any fees to process your application.
• All documents should be typed or very clearly printed in black or blue ink.
• Fill out the Hague application as completely as possible with the information you possess. The physical descriptions of the taking parent and child (Parts I and III) are especially important, and should be completed regardless of the existence of accompanying photos. While passport numbers and social security numbers are very helpful, they are not essential.
• If you are concerned that the taking parent will flee or go into hiding with the child when notified of Hague proceedings, it is essential that you note this and state the reason for your concern in Section VIII or on a separate page. It is helpful to the case officer if you repeat your concern in a cover letter or note attached to the front of the application package.
• Incomplete applications cannot be submitted to the Brazilian Central Authority, as they are unable to take action on them.

The completed Hague application package should be submitted to:

By courier (FedEx, DHL, Express Mail, etc.) or by regular mail:

The United States Central Authority

Office of Children’s Issues (CA/OCS/CI)

U.S. Department of State

SA-29, 4th Floor

2201 C Street, N.W.

Washington, D.C. 20520-2818

6. Does the LBP have to have preexisting access rights in the form of a visitation order to be able to seek assistance under the Hague Convention in the country?

An application for access/visitation can be filed with the Central Authority at any time after the abduction. There does not have to be a preexisting order granting visitation rights in order to request access under the Hague Convention.

7. What is the initial processing of applications like? How is the Hague return decision made?

Hague applications are submitted to the U.S. Central Authority for forwarding to the Central Authority in Brazil. The Brazilian Central Authority examines the application and determines whether they will accept it. Once the application is accepted, the Central Authority with the aid of INTERPOL determines the location of the child. Once the location of the child and taking parent is known, the Central Authority attempts to mediate an agreement between the parents. If an agreement is not reached, the case is forwarded to the Attorney General’s Office (AGU), who files the case with a federal court.

The petition is assigned to a federal judge within 48 hours of its filing with the court. The court notifies the taking parent and summons their attorney to contest the petition. The AGU, acting on behalf of the Brazilian Central Authority as well as the left behind parent, then has an opportunity to respond to the taking parent’s arguments. After both parties have been heard, the Judge submits the case for examination to a representative of the Ministerio Publico.

The Ministerio Publico presents a formal opinion to the Court in all cases involving minors. In Hague abduction cases, the representative will submit a report recommending either the return of the child or that the child should remain in Brazil. In Federal cases, the representative will be a Procurador da Republica (Public Prosecutor). If the case is filed in the local family courts, the representative will be a Promotor (State Public Prosecutor). The Judge has complete independence to rule on the case and does not have to follow the Ministerio Publico’s recommendation in his decision. At this stage the Judge may request additional documentation or evidence and hold a hearing with representatives from the AGU and Central Authority. The AGU continues to follow the case, acting on the left behind parent’s behalf throughout all legal procedures until there is a final decision. There is no time limit for a verdict to be issued in the case.

8. Do I need a lawyer?

As mentioned above, if the case is submitted through the Central Authority, the AGU will act as the legal representative of the left behind parent. In this instance the case is a public case and is filed with a federal court. The Brazilian Central Authority will continue to provide assistance throughout the process and assist in enforcing an order for return under the Convention. A left behind parent, however, can also initiate a private case by presenting a Hague application to a local family court through an attorney that he/she has hired. Cases filed through the Brazilian Central Authority have experienced lengthy delays due to a reliance on INTERPOL to confirm the child’s location as well as a shortage of federal attorneys assigned to handle Hague cases in the AGU. For this reason, in some instances it is preferable to hire a private attorney when possible. While cases initiated directly with a Brazilian court through a private attorney do experience fewer delays, the Brazilian Central Authority does not assist in the enforcement of the order.

9. How do I find a lawyer in Brazil?

You can refer to the Embassy homepage (www.embaixada-americana.org.br) for a list of attorneys working in Brazil.

10. Can I get pro bono legal assistance?

Pro bono legal assistance is available every time a Hague application is submitted and accepted by the Brazilian Central Authority. The AGU acts on behalf of left behind parents. Additionally, Brazilian parents may seek pro bono assistance on Hague and non-Hague matters through the Defensoria Publica Da Uniao (Public Defender’s Office) if they can prove they do not have the financial means to hire an attorney. Foreign parents may, in some instances, be able to seek assistance from the Public Defender’s Office.

11. What costs will I incur?

There are no fees for filing Hague applications with either the U.S. or Brazilian Central Authorities. If a left behind parent chooses to pursue a private case, attorney fees are their own responsibility.

12. Can I appeal a decision?

The judgment of the Federal Judge can be appealed with a higher court, the Tribunal Regional Federal. The Tribunal consists of at least seven high judges (desembargadores), with one desembargadore acting as the petitioner and the others examining the case and presenting their positions on the case. The desembargadores then vote on a decision in the case. The decision of the Tribunal can only be overruled by the Supreme Federal Court.

ADDITIONAL HELPFUL INFORMATION:

Passport Applications for Minors: As of July 2, 2001, a person applying for a U.S. passport for a child under the age of 14 must demonstrate that both parents consent to the issuance of the passport or that the applying parent has sole authority to obtain the passport. This law, known as the two-parent signature law, covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstances necessitating the immediate travel of the child. The purpose of the new requirement is to decrease the possibility that a U.S. passport might be used in the course of an international parental abduction.

Children’s Passport Issuance Alert Program (CPIAP): Apart from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children’s names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian of a registered child will be notified by the Department of State’s Office of Children’s Issues before a passport is issued to his/her minor child. The parent, legal guardian or a court of competent jurisdiction must submit a written request for entry of a child’s name into the Passport Issuance Alert Program to the Office of Children’s Issues. The CPIAP also provides for denial of passport issuance if appropriate court orders are on file with the Office of Children’s Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot track the use of a passport. If there is a possibility that your child has another nationality you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country’s passport. For more information contact the Office of Children’s Issues at (202) 736-9124. General passport information is also available on the Office of Children’s Issues home page on the Internet at: http://travel.state.gov/children’s_issues.html.

MORE INFORMATION: The State Department has general information about hiring a foreign attorney, service of process, and enforcement of child support and the international enforcement of judgments, which supplement the country-specific information provided in this flyer. In addition, the State Department publishes Consular Information Sheets for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations in a country are sufficiently serious, the State Department issues Public Announcements or Travel Warnings that may recommend U.S. citizens defer travel to that country. These documents are available on the Internet at: http://travel.state.gov or by the toll-free number, 1-888-407-4747, between 8:00 a.m. – 8:00 p.m. eastern time, Monday thru Friday (except U.S. holidays). Callers who are unable to use the toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-317-472-2328.

[Rob & Jin 0]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

It should have no bearing on HER approval. It will likely stop her from bringing her daughter with her though.

Gillian

Will have no bearing on the K-1, if you want to bring your daughter then you need to file a K-2 as well. What is the divorce court agreed custody status ? if you have full custody then its not a issue, he cant interfere

[pushbrk 12,898]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

It should have no bearing on HER approval. It will likely stop her from bringing her daughter with her though.

Gillian

Will have no bearing on the K-1, if you want to bring your daughter then you need to file a K-2 as well. What is the divorce court agreed custody status ? if you have full custody then its not a issue, he cant interfere

That is absolutely correct for China but this mother isn't from China. Other countries have different laws. Some full custody arrangements are not sufficient to allow immigration to another country. The OP needs an answer specific to their own circumstances.

[Rob & Jin 0]

Hello all,

I am a newbie here, my first question (of many i'm sure) My fiance's ex-husband told her that she would not be allowed

to bring their 2 year old daughter to the United States. My question: will this in any way affect her approval to come to the U.S.?

It should have no bearing on HER approval. It will likely stop her from bringing her daughter with her though.

Gillian

Will have no bearing on the K-1, if you want to bring your daughter then you need to file a K-2 as well. What is the divorce court agreed custody status ? if you have full custody then its not a issue, he cant interfere

That is absolutely correct for China but this mother isn't from China. Other countries have different laws. Some full custody arrangements are not sufficient to allow immigration to another country. The OP needs an answer specific to their own circumstances.

Ok I STAND CORRECTED