Ask A Lawyer: Can My Daughter Stay In The U.S.?

Question:

8 Year ago a married a women that I later found out was in the country illegally, regardless of her status we loved each other and later had a girl (now7) in addition to her son (now11). She was later arrested and deported to Mexico, after 3 years of immigration loops, we separated and I now want a divorce, She has threatened to take the kids to Mexico if I divorce her, since she needs me to enter the US. At this time she is not allowed in the US.

If I file for divorce can she custody for the kids in Mexico although they are US citizens?

 

Answer:     

The general guiding principle in any custody case is the best interests of the children.  If you did file for divorce, your daughter would be subject to the jurisdiction of the court; however, your stepson would not be.  Based on the facts you’ve included, it sounds like you have your daughter full time since Mom is in Mexico.  If that is the case, and your daughter is doing well, it is likely that the court would order that she continue in the same environment she’s in now. 

Whether your wife would get an order from the court allowing her to take your daughter to Mexico is possible, but not probable.  There’s also the option of pursuing an order preventing her from doing so, which you may be able to get right away if you do file for divorce, but that depends on the laws of your state.  Practically speaking, if she’s not allowed in the country, it would be difficult for her to petition the court for any kind of order in regard to her children. 

In regard to your stepson, the process would be different.  Since he’s not subject to the jurisdiction of the court because he’s not a child born of the marriage, you would have to bring a separate action.  This could be in the form of a petitioning the court to appoint a guardian or as a child in need of care case.  Basically what you would ask the court to do is appoint you as guardian or custodian of your stepson.  Because she has informally left her son in your care and you have been providing that care, you would be asking the court to make it official so that you would be in a position to formally and legally make decisions in regard to his health, safety, education, etc.
 

Claudia J. Weaver is an Associate Attorney with Cordell & Cordell, P.C., in Overland Park, Kansas. Ms. Weaver practices exclusively in the area of domestic relations.

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