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  1. #1
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    Apr 2013
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    Default Custody Rights to a Child Born Abroad

    Hello
    I am currently 4 months pregnant. I am dual citizen of Brazil and the US (Brazilian mom, American dad) and the father of my baby is a US citizen. We've never been married and on and off for 4 years. After he found out I am pregnant he wanted me to have an abortion, because I chose not to, he keeps threatening to take the baby away from me after he is born and my life has become an emotional hell. My family thinks its best for me to have the baby in Brazil where I will have emotional and financial support for while. I plan on staying in Brazil only for a few months after the baby is born, maybe a year. So I guess my question is, when I come back to California with my baby and with full custody in hands, will the father have any chance of gaining custody here in California? or visitation rights given that the baby will be a Brazilian born, although he will be a dual citizen as well? Or will he have to go to Brazil and ask for rights there? Which country will have jurisdiction over my child to change the full custody order I will be bringing from Brazil?
    I dont want a penny from him, so child support is not an issue.

  2. #2

    Default Re: Custody Rights to a Child Born Abroad

    If you return to live in the US with the child, dad can seek visitation. But unless you're proven legally unfit, he won't get custody just because he wants it. It won't matter if the baby is Brazilian born - if dad, here in the US, is the father, and establishes himself as such, he can seek visitation and other parental rights - which may INCLUDE the right to ask the court that the child NOT be removed from the country. Once you return to the US, IF dad starts legal action regarding visitation, you will NEED the services of an attorney to help you address the maze of law regarding children and international travel.
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  3. #3
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    Default Re: Custody Rights to a Child Born Abroad

    I dont mean to be rude, but you are wrong on this. How can he ask the court for my child to not be removed from the US, if my child is brazilian? The US (or any other country for that matter), does not have the power to hold a citizen of another country "hostage" here. It would be violating his human rights. Being a natural born brazilian citizen, he would be returning to his country of origin and no judge can stop him form that. I know that for a fact.
    My question was if the courts in the USA could modify the custody order that I will be bringing from brazil. All the research I did says that only the court in which the child was born has jurisdiction over that child. So if my child is born in Brazil and I get full custody rights from a Brazilian court, how can a US court change that order? Wouldnt the father need to travel to Brazil and ask for rights there? Thats what I have been told... but I am still confused.

  4. #4

    Default Re: Custody Rights to a Child Born Abroad

    Quote Quoting brisapinho
    View Post
    How can he ask the court for my child to not be removed from the US, if my child is brazilian?
    He can ask because he'd have the parental RIGHT to do so. Can it be successfully fought in the family custody court? Yes, but it's an intricate process, which is why I told you that if dad seeks parental rights, you'll need an attorney to rebutt his request. Note that there's a BIG legal difference between visiting CA, and you and the child MOVING to CA and establishing residency there - once you're established as a resident and with you having American citizenship, that's the locale where you can expect court jurisdiction to kick in - REGARDLESS of where the child was born. You don't get to be a US citizen living in the US with the child and expect the Brazilian court to be involved. If you, dad, and the child are living in CA - it's CA whose courts you'll be dealing with. Or, you can stay in Brazil. Or, you can visit the US. But the minute you establish residency back in the states, it's a matter for the state courts.
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  5. #5
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    Apr 2013
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    Default Re: Custody Rights to a Child Born Abroad

    So after I read your replies, I went ahead and hired an actual International Custody attorney here in San Francisco. You are wrong and I wanted to take the time to post the correct information here.

    1. Once I have my child in Brazil, and I spend at least 6 months there, Brazil becomes the child's habitual residence as stated in the Hague Convention. Since I am not married to my baby's father and he wont be on the birth certificate, it will be very very easy to get full custody from Brazil.
    2. Once I have that custody order and I return to California, the same attorney I hired will then file the order with California courts. Once the order from brazil is filed here in California, it is valid and can only be modified in Brazil. If the father wants ANY rights he will need to fly there and ask for modification there. Thats because both US and Brazil are signatories of the Hague Convention and they honor each other's custodial orders.
    3. The habitual residence in my case would be Brazil since thats were I am from, my child is from and thats where we lived for over 6 months after my child was born. Period. There is no going around this.

    This is factual information from one of the top international custody lawyers in San Francisco. In case anyone is in a similar situation as me, make sure you hire one so you can protect yourself. They are pretty expensive (around $600 for the first one hour consultation), but at least you will get correct information and they will be able to help you file any orders you bring back from abroad.

  6. #6
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    Default Re: Custody Rights to a Child Born Abroad

    Now that you have some peace of mind, please focus on having a stress-free, healthy pregnancy. Your stress can affect the baby.

  7. #7
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    Default Re: Custody Rights to a Child Born Abroad

    Quote Quoting brisapinho
    View Post
    So after I read your replies, I went ahead and hired an actual International Custody attorney here in San Francisco. You are wrong and I wanted to take the time to post the correct information here.

    1. Once I have my child in Brazil, and I spend at least 6 months there, Brazil becomes the child's habitual residence as stated in the Hague Convention. Since I am not married to my baby's father and he wont be on the birth certificate, it will be very very easy to get full custody from Brazil.
    2. Once I have that custody order and I return to California, the same attorney I hired will then file the order with California courts. Once the order from brazil is filed here in California, it is valid and can only be modified in Brazil. If the father wants ANY rights he will need to fly there and ask for modification there. Thats because both US and Brazil are signatories of the Hague Convention and they honor each other's custodial orders.
    3. The habitual residence in my case would be Brazil since thats were I am from, my child is from and thats where we lived for over 6 months after my child was born. Period. There is no going around this.

    This is factual information from one of the top international custody lawyers in San Francisco. In case anyone is in a similar situation as me, make sure you hire one so you can protect yourself. They are pretty expensive (around $600 for the first one hour consultation), but at least you will get correct information and they will be able to help you file any orders you bring back from abroad.


    I believe you're missing one important - if not VITAL - point.

    In the great state of California, a paternity action can be started BEFORE the child is actually born. Now granted, nothing will be decided before the child is born but that alone could seriously mess up your "plans".
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  8. #8
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    Default Re: Custody Rights to a Child Born Abroad

    Are you a lawyer? And where did you get this "fact"? Thats the problem with these forums, everyone has an opinion, but opinions arent fact, and a lot of people end up misinformed because they cant afford actual legal help.

    An unborn fetus is not considered a child. I can move to where ever I want, whenever I want and do whatever I want, even abort my child if I want... without any consent from the father. Even if paternity action COULD be started before my child is actually born, it does NOT matter. My child will be Brazilian, with his habitual residence in Brazil. Period. There is absolutely nothing the US can do about that. I know its hard to accept that the great US courts could be powerless in a situation but believe it. There is a reason Brazil and the US are signatories of the Hague Convention.

    For any pregnant women out there in the same situation as me. PROTECT YOURSELF. Have your children in your home country and THEN naturalize him automatically at an American Embassy. Come back only after 6 months and with a custody order in hands. I cant count how many friends are in worse situations because they had their babies here. Women who have been abused by their boyfriends, have to be at their mercy whenever they want to visit relatives abroad hoping that he will be in a good mood enough to authorize. Plus they share their children 50/50 with these aggressive aholes because the courts think its in the best interest of the child. Please.

  9. #9
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    Default Re: Custody Rights to a Child Born Abroad

    Yes, you can absolutely abort.

    But if presumptive Dad files a paternity action (assuming you give birth - which apparently you intend to do since you're here in the first place), that could start a huge jurisdictional battle.

    You better hope he doesn't do that, or if he does, you had better be prepared for a costly battle. Because you're dead wrong - it absolutely COULD matter. It could matter a great deal.

    And don't start with the whole "Great US" thing, honey. I'm an immigrant myself.

    Did your expensive attorney also inform you that while a country may be a Hague signatory, that's never, ever, an absolute guarantee that the country will honor a foreign order?

    No?
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  10. #10
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    Default Re: Custody Rights to a Child Born Abroad

    Again, where did you get your information?

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