Goulders

Please could someone give me some advice. Basically, I am going through a really messy divorce and the soon to be ex-wife wants to emigrate to the USA with her new partner who is a US citizen although he is originally from the Netherlands. She wants to take my 2 children with her. It is a very long story, but basically we got married 3 years ago and she had an affair with an American lad after only 2 months. I subsequently left her and is now seeing another, different American man.
She now wants to ger married again and take my children away from me and is having to go through the court process to allow that to happen. Naturally, I am trying to prevent her.
She has no qualifications at present, but will probably be a qualified midwife in March 2009. She has already told the court that she intends to live off her new partner for a year and then work part time.
What I really, really need to know is how would she go about applying to live in the USA and what criteria does she need to meet. ie, does marriage alone allow her automatic entry to the USA? Can she get a time limit green card? Is she allowed to live in the USA without working? Is she automatically allowed to take my children with her?
I realise that this may be a strange question, but I am really worried that I will not be allowed to see my children again. The boys are only 4 and 5 years old and need their daddy.
Any help would be greatly appreciated.

Elvira

Most definitely not. She cannot LEGALLY remove the children from the UK without your permission or a court order.

Having said that, it will be a whole lot easier if you take steps NOW to prevent her removing the children without your consent.

You must consult a solicitor who specialised in divorce/custody without delay.

I would also recommend the Legal Issues Board at the Motley Fool (www.fool.co.uk)

NB: emigrating to the US is not straightforward, even for a spouse of a USC. (Check the Wiki in the Marriage Based Board for details if you're interested...)

Goulders

I do have a solicitor acting for me or should I say did!! The ex-wife has stopped me seeing my children for no reason previously and I have now spent in the region of £20,000 trying to see my children and get divorced. I simply dont have any more money left as I have maxxed out my mortgage, overdraft, credit cards and loans. I am therefore going through the court process on my own. By the way, she gets all her legal bill paid for on legal aid as she is still a student. She is rushing everything through the court so that she wont pay for anything. As long as it is finalised before next March then she wont have to work to pay for her solicitor. She knows that I am paying for everything. I am not the bitter ex who wants to wreck her life. Quite the opposite. I am not perfect by any stretch of the imagination, but can honestly say that I did not do anything wrong. I just want to see my children !!!

Elvira

Sorry to hear of your problems, but I feel you do need some sort of legal advice.

Try the board I mentioned.

Goulders

Thank you. I will have a look and see what they can suggest.

Manc

When my mother got divorced some years ago, she too got legal aid.

The Legal Aid board put a Lein on her home in the UK which meant she couldn't sell it without them taking their legal fee's back.

I don't know if the Legal Aid board would be too happy if she scarpered either without paying them back.

Bob

UK nursing qualifications will mean jack shit in the US, so that's a plus going your way to show at court...that and the US won't let the kids in without permission.

Goulders

Would the ex be able to simply marry her partner and then be allowed into the USA on that basis alone or does she have to work? Also, can she start the application NOW as at the present time, we are still married and the divorce is only due in a month or so? And finally, the court hearing for the children is only set for next January or February and she is saying that she is moving to the USA in April. Will the immigration services allow her to make the application whilst the court proceedings are still ongoing?

Tootsie Frickensprinkles

You've got two separate issues on your hands here.

Settle the divorce ... make sure that you get the legal access rights to your children that UK family law allows you. This is your primary concern. The outcome of these hearings could well have an effect on any judgment made about custody concerning removal from the UK. I realise you say she is witholding access, but that is her wrongdoing and it will go against her in any family court. I know how distressing it is, but just ensure above anything else you stay on the right side of law.

Then deal with the American issue.

If she marries this USC, it wont be simple and it will be time consuming and expensive. There's going to be a good long while before she can legally remove your kids from the UK, if ever.

Unless there are legal reasons why you would not be granted access in the custody decision arising from the divorce, I dont see how any judge is going to allow her to remove them without your agreement, but Im no lawyer I just remember reading the whys and wherefores as we had no money for solicitors at the time either.

If you're concerned she will just fly off sooner rather than later, then someone in the UK forum was talking about a child security register held at airports last week. Maybe that course of action would put your mind at rest.

Check out the forums and sections mentioned above but in short no, she cannot apply for a spouse or fianace VISA whilst still married. All the legal documentation to allow your sons into the States also requires proof of legal permissions etc etc. She CANNOT just do this under your nose.

You really need to concentrate on the divorce settlement and custody agreement first though. Get a solicitor back in there with you, even if it just for very limited hours during the hearings.

Goulders

Thanks for the advice. From what you are saying, it appears that the ex cant just get married and take the children which is great news. Is there anywhere on the Imigration website that states that so that I can provide it to the court?
Also, at present I do see my boys and there is a court order in place due to her previously stopping and witholding contact, but as she is going to court, the judge can withdrew the old order and inpose a new one stating that she can take the boys. Hence, that is why I am trying to stop her taking my children. I can get some advice from my solicitor, but it really is only phone advice as I cant afford to be represented. Therefore, if anyone can point me in the right direction to look for info, I would be obliged.

MsElui

have you looked into free legal advice. when i lived in london there was a local scheme whereby solicitors gained experience by offering free advice at a clinic once a week.

meauxna

Just to play devil's advocate....
The ex can't *legally* 'just get married and take the children' but people do some wacky crap.

Titchski

Just out of interest, have you tried getting in touch with Fathers For Justice?

They may well be able to provide you access to resources that you might not have otherwise known about?

Titchski

Indeed, and if that wacky crap happens then the Hague Convention relating to Child abduction would come into play. Both the UK and the US are signatories. Unfortunately, from a brief perusal, if seems that the children would be removed from the mothers custody and returned to the state of residency (the UK). This does not mean they would be returned to the OP. Everyone loses should that happen I fear.

Bluegrass Lass

Your ex just can't up and move to the US. She needs to go through a visa process. That process can't even be started until she is legally divorced from you, and then marries her new boyfriend. Assuming they are going to immigrate 'legally' (and not try to circumvent the law by using the VWP), it will take approx. 6-8 months for her visa to be approved to move to the US. Part of the requirement for approval will require her to show a document stating that you give her permission to remove the children from the UK. If she cannot show that type of doc, then the visa for the kids may not be approved. I know others that have posted on here about difficulties in obtaining a visa when in a similar situation with kids.

As another poster said, you have 2 diff types of probs here: 1) your divorce and custodial rights, and 2) her potential immigration to the US.

I don't know what the court system is like there, but I would think it would damn difficult for her to legally prevent you from seeing them and essentially stealing away your custodial rights. Look into getting a representative so you aren't bullied in the courtroom! Good luck!