Thanks Rete for the tip.

After having no sign of interest in being in the US, to the extent of driving without a valid license for 2 years, she sudeenly realized that the USC husband was not going to let the USC child leave the country without a fight and has decided to use VAWA even though it can be argued that the abusee was the husband who lives under threat of losing his son.

That still doesn't mean she will be awarded complete custody of the child or that she will be allowed to remove the child from the US.

You need to discuss this with your divorce attorney and I hope he/she specializes in child custody cases.

Why hasn't she gotten her green card after two years? Seems like a long time to wait.

Hi Rete,

According to the OP's other thread, it appears his wife has CPR. It's coming up on time to file for removal of conditions.

Rene

She is conditional, due to expire in early July and obviously with divorce papers just having been filed, there will be no 751 filed.
The divorce attorney does specialize in child custody cases. The reality of it is that the relevant family court tends to give majority custody to the child. Since the mother has not worked for a loooong time and given the high cost of living in the area, she will eventually be forced to go back to Canada and there will be World War III as she petitions the court to let her "move away' with the child.
However, lying to an arm of the goverment will be VERY relevant in awarding custody.
The end objective is to have the child remain where he belongs, in the USA, and not for total custody.

I'm not sure what this means.


I don't think it'll have as much impact as you think. Lots of people lie to the government with no consequences at all... and, while fathers have been awarded custody more and more in the last decade, courts are still loathe to separate a mother and child.


I understand that's your POV... but the US is not necessarily where the child belongs. Ultimately, I believe this will come down to a jurisdictional issue... and family court may not have the authority to make such a decision.

Ian

I don't recall if it was mentioned anywhere, but just out of curiosity, how old is the child?

Rene

Regardless if it is formally shared, do believe that her attorney will bring that up in the paperwork and in court if there are abuse charges filed or alleged.

BTW why do you think she will file under abuse for the removal of conditions? It seems like the hard way to go about it from my point of view. Far easier to take from the home all the documentation required to prove the financial and social commingling of the marriage and just file based on the grounds of a valid marriage when the divorce is final. After all, you have a child together, that, in and of itself, is good proof.

to answer to a bunch of the replies: the child will be turning 3 in August. In addition to being a USC's child, he is also born in the US so that he does belong in the US.
The jurisdictional court is the supreme court of California (UCCJA), since the child was born here and has lived there all his life.
A contested custody divorce will take at least 12 months and potentially 18. That would make her out of status for a long period of time. Since she is asking for sole custody I can foresee 24 months or more, between evaluations, long cause motions and appeals.
At the time of the serving of papers there was no physical or mental abuse. There was also by her desire, no comminling of accounts, real estate etc. The only thing common is the child.

If the divorce papers are filed before she needs to submit the I-751, then most likely USCIS will forgive her "out of status" time while she waits for the divorce to become final so she can have the divorce decree to file along with the I-751 on her own. She still would have to prove that the marriage was entered into in good faith, though.

Rene

I don't recall how she came to the USA...did she come on an Immigrant Visa, or did she come another way and AOS here after marrying you?

Rene

You are, apparently, misunderstanding the concept of "belong".


This time, you misunderstand the concept of "jurisdiction".


In the grand scheme of things, this is irrelevant.


In the grand scheme of things, this is irrelevant.


In the grand scheme of things, this is irrelevant.


This is all that matters... and the courts are loathe to separate a mother and a child. All that matters is *not* the sort of wife she was to you, but the sort of mother she is to the child. Even if she was a crappy wife, she may be a good mother... and *that* is what the court will focus on.

Ian

I'm not at all familiar with California divorce and/or custody laws, but here in New York the custody issues do NOT have to be part and parcel of the divorce itself. Custody and child support issues can and often are handled separately from the divorce itself. Been there and done that.

I would think it would be advantageous for you to separate the two issues so that your wife can legally remain in the US and still be tied here until the custody issue is settled.

You must also remember your child is also a citizen of Canada, as well as the US, and as such has as much right to live in Canada with his mother as to living in the US with his father. We are not talking about a third world nation here but another first world nation and one which is easily accessible to by US citizens.

All in all, it is the child's future that is important and not the parent's. Your wife dislikes living in the US and wants to return to Canada. You, of course, do not want to lose the day to day involvement of your child and that is perfectly understandable. If you can prove to the court that you can provide daily care for the child while you are at work, assume competent care of his medical, emotional and educational well being, the court will most likely award joint custody. Unfortunately, it might come down to your having custody during holidays and summer vacations and that the child resides with its mother in Canada. This is a distinct possibility if the mother is not able to timely petition for the removal of conditions and is forced to return to Canada. However, if she is successful in removing conditions then a court might and the operative word here is might decide that the mother cannot remove the child from the State of California. This can only be done if she has legal right to remain in the US.

So prolonging the divorce might be adverse to your cause to at least share joint custody with her.

She did not come here on any visa (Canadian citizens do not need visas to enter the US)

I have a home office and own my business, I have a lot of flexibility and have been actively parenting. The court IS likely to award joint custody.

OK, so she came over another way (as a visitor) and did AOS here after marrying you. I don't remember now why I thought that might be significant in your case, but thanks for the clarification.

Rene