Can the Son of an American Sue for Citizenship

[AbusedInSiam]

A Thai woman has had a son by an American living in Thailand. The father after stalling for a long time is now refusing to go to the US Embassy to obtain a US passport or submit a certificate for report of birth abroad for the 2 year old child. The father, mother and child are all still living in Thailand. The mother and father were not legally married, although lived together for about 2 years. They have since split up.

Is there any legal procedure that can be used in this case to compel the father to acknowledge the child and to obtain citizenship for the child? If so, how could this be done, and what kind of financial budget would be necessary to complete the proceedings?

[T53147]

Unless Thailand law recognizes the father as a legal parent, the father would have to initiate a proceeding for an illegitimate child to be recognized. It is not required that a US citizen parent apply for a foreign born child. DNA matching could be required to prove paternity.

If it is the mother's intent to use a US citizen child to come to the US, she needs to understand that a child can only sponsor a parent upon reaching age 21.

Who are you in this situation?

[AbusedInSiam]

Unless Thailand law recognizes the father as a legal parent, the father would have to initiate a proceeding for an illegitimate child to be recognized. It is not required that a US citizen parent apply for a foreign born child. DNA matching could be required to prove paternity.

If it is the mother's intent to use a US citizen child to come to the US, she needs to understand that a child can only sponsor a parent upon reaching age 21.

Who are you in this situation?

I am a nobody...a friend of a friend who was asked to inquire into this because of my nationality. I am an American who would like to see the child get the citizenship he deserves. This would not be used for the mother to come to the US. I doubt she would enjoy living overseas anyway. But the child deserves the right to his heritage. A world of opportunities open up to him with a US passport that are not available with only Thai citizenship.

Depending on the cost, and if it is possible, I may also be willing to fund legal proceedings for the benefit of the child.

Can you elaborate on your statement:

"Unless Thailand law recognizes the father as a legal parent,"

Assume a paternity suit was filed and won in Thailand, so that there would be no doubt as to the who the father was. Given this, can the father then be compelled to go to the US embassy, or is there an alternate process that can be undertaken by submitting documents and evidence without the cooperation of the father? Does the child have any rights to claim his heritage if the father refuses to comply?

[T53147]

As the friend of a friend, you should have your friend advise their friend to get legal counsel for both Thailand paternity law and US immigration.

I doubt that you are truly willing to spend the potentially tens of thousands of dollars on a law suit involving someone you do not even know for a lawsuit that is unlikely to be successful.

As for the child deserving citizenship, if the mother cared then she would have had the child after marriage where the paternity was clearly established, and she would have have the basis to immigrate as the spouse of a US citizen. As the live-in girl friend - even as the mother of a US citizen - she has no basis to immigrate to the US at this time. This is clearly a MYOB situation.

[AbusedInSiam]

I am a nobody...a friend of a friend who was asked to inquire into this because of my nationality. I am an American who would like to see the child get the citizenship he deserves. This would not be used for the mother to come to the US. I doubt she would enjoy living overseas anyway. But the child deserves the right to his heritage. A world of opportunities open up to him with a US passport that are not available with only Thai citizenship.

Depending on the cost, and if it is possible, I may also be willing to fund legal proceedings for the benefit of the child.

Can you elaborate on your statement:

"Unless Thailand law recognizes the father as a legal parent,"

Assume a paternity suit was filed and won in Thailand, so that there would be no doubt as to the who the father was. Given this, can the father then be compelled to go to the US embassy, or is there an alternate process that can be undertaken by submitting documents and evidence without the cooperation of the father? Does the child have any rights to claim his heritage if the father refuses to comply?

OK...an update...I saw this in another thread:

A child born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(a) INA provided:

1) a blood relationship between the applicant and the father is established by clear and convincing evidence;

2) the father had the nationality of the United States at the time of the applicant's birth;

3) the father (unless deceased) had agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years, and

4) while the person is under the age of 18 years --

A) applicant is legitimated under the law of their residence or domicile,

B) father acknowledges paternity of the person in writing under oath, or

C) the paternity of the applicant is established by adjudication court.

The immediate question I have here is #3. Would an order by a foreign court requiring the father to pay support fulfil this requirement, or does this requirement effectively mean that the father must voluntarily comply?

Also, would this imply that the child is allowed to apply without the father's support once he is 18 years of age if a foreign paternity suit is filed while he is still young?

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Hi T53147. Thanks for your response.

As the friend of a friend, you should have your friend advise their friend to get legal counsel for both Thailand paternity law and US immigration.

Thailand law is not a problem. She is getting help there. I am trying to understand if there is any reason to visit a US attorney before advising her whether or not to go that route.

I doubt that you are truly willing to spend the potentially tens of thousands of dollars on a law suit involving someone you do not even know for a lawsuit that is unlikely to be successful.

If it is truly something unlikely to be successful, then you are correct. The question was to determine an estimated level of complexity and likely success in this case.

As for the child deserving citizenship, if the mother cared then she would have had the child after marriage where the paternity was clearly established, and she would have have the basis to immigrate as the spouse of a US citizen. As the live-in girl friend - even as the mother of a US citizen - she has no basis to immigrate to the US at this time. This is clearly a MYOB situation.

Unfortunately these things happen. The mother is not interested in immigrating to the US. I am only concerned about the child in this case. I have been asked to gather information so it would be impolite to simply say no if there is some way I can help. If you saw this cute little boy you might understand. He deserves a better chance than he will get without US citizenship.

I am not the kind of person who can callously say "you're on your own" if it is within my power to help him.

[T53147]

The mother must also take into consideration the adverse affects, if any, of her child possessing dual citizenship in her home country. It may not be in the best interest of the child should they continue to reside in Thailand. That is an issue for a Thai legal specialist. In the worst case, the child having a US passport could facilitate international child abduction.

I assume she continues to get (or will get after Thai legal proceedings) financial support from the child's father, there are the interpersonal relationship problems that will arise from the mother going against the father's wishes. It is difficult to enforce child support across international borders. She could jeopardize what she has simply to gain something of little immediate value to her child.

Whatever the mother decides to do, she absolutely must have the assistance of an attorney. If you want to help, pay for a consultation with an immigration attorney specialist in international family law. There is far more to consider than just a US passport for the child.

(Note: My sibling's child COULD have dual citizenship; it is my family's fear that should his other parent obtain it for him that it is far easier for his other side of the family to refuse to return him to the US after a visit. This should certainly be a concern for this child as well.)