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Can I Get Sole Custody - Wife Left to Her Home Country, Left Son with Me

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  • 08-04-2010, 12:43 PM
    thehkboy
    Can I Get Sole Custody - Wife Left to Her Home Country, Left Son with Me
    My question involves a child custody case from the State of Colorado.

    Hi,

    I have some lengthy background information here, please be patient while reading it.

    My wife and I have a 2 yr and 5 month old son. He was born in Colorado. I am a US Citizen. My wife is a permanent resident.

    My wife and my son visited China twice without me. The first time I met up with them in China and return with them together. It was planned that way. In order for my wife to get more time to be with her family, they usually go first and I will go later and return with them together. The second time, they left Nov 2009 and I went in Feb 2010 and supposed to return with them on March 2010. However, my wife canceled her and my son’s tickets (without my consent) the day before the return and refuses to come back to the US. So I came back alone in March 2010.

    I went back to China in May 2010 (take time off again), pick up my son from my mother in law and came back to the US with my son. This was done without my wife’s consent. I did this because I am trying to avoid the US losing jurisdiction over my son. If my son stays in China for more than 6 month, the US court will lose jurisdiction over him and my wife can file for divorce and custody in China. Also my wife left our son with her mother house and left and didn't care for our son.

    I took time off (2 weeks) after I returned with my son, in order to make sure my son is in good hand before I return back to work. My mother is now caring for him when I am at work.

    In July 2010, my wife returns to the US after spending over 180 days in China. This 180 day rule is crucial because immigration law does prevent any permanent resident to leave US for more than 180 days. By doing so, immigration will suspect the person have a tendency to abandon their residence in the US.

    When my wife returned, she went to California and refuses to come back to Colorado. She demands me to bring her the son. I hesitated at first but I ended up taking time off again and traveling to California with my son to meet her. While we were in California, I tried to ask my wife to stay in the US in order to provide a full family for our son. She refused and said she wants to have a life in China and think the US is not for her. She asked to return with our son and I refused. I refused because my son is a US born citizen and I believe he needs to be growing up in the US where it has better education system, air quality, and environment for kids. She still insists to return to China and she left in mid July without our son.

    Now my questions are:

    What are my chances of getting at least joint custody with my wife?

    If we have joint custody, my wife can still take our son back to China. I know she will violate a court order, but if she will never come back, she won't care. No one (airline, immigration) will be checking if there is an outstanding court order. How do I prevent that? Holding the passport and enter my son into the child passport issuance alert program? For those of you don’t know what this is, please check out http://travel.state.gov/abduction/pr...uance_554.html

    I am a believer in our son will be better to have both mom and dad in his life. But given the risk listed right above, I would not mind to get sole custody of our son. I do not care if my wife comes visit us, I am more than happy. I just don't want my wife to take our son back to China, where she thinks is better place for her and our son. I wouldn't mind visiting her in Chain with our son either, but I wanted to wait until my son is older (maybe 6 or 7) before I do so. It is because at that age, I think he will be able to tell my wife and in laws that he wants to be in America. Given my wife went back to China without our son, does that prove that she neglected our son and she is an unfit parent to care for our son?

    My wife and I are still married and no divorce has been filed. Should I file soon or wait until I my wife spent more time away from my son to prove that she cares about herself more than our son?

    Do I need to support my wife even when she is in China and not with the family?

    Here are some facts that might prove me as a better/worst fit parent, please help me to point out if they are favoring me a better or worst fit parent.

    I have my own business. But my business requires me to travel to Houston every other week. When I travel I leave on Monday morning and return Wed or Thursday night. Will the traveling be an issue? I mean we are talking about 6 to 10 days every month. If this is a killer, I will need to find a job in Colorado and close my business. I will not make as much money but I will be able to provide for me and my son.

    I have been to every single doctor visit with my son since he was born.

    I enrolled my son in a Montessori school.

    I spend lots of time with my son when I am not working. Many people in the community can testify that.

    I am still in contact with my wife and in law. I think I can prove that by showing my phone call history with the online phone card company. She rarely calls me.

    I asked my wife to see the son on web cam and she refused. She refused to talk to him on the phone either.

    My father was paralyzed for almost 2 year before he passed away in 2009. I took time off from work to aid with his recovery, I visited him in the nursing very often and care for him with love. Staff in the nursing home can testify that. Does this help proving me as a better fit parent because I am very family oriented?

    My marriage might not be saved, but I don’t want my son to be the victim of this. It is a tough decision to choose joint custody or sole custody. Again by getting sole custody, I will still include my wife in my son’s life. I am just afraid my wife will take him back to China and I can only see him once a year for a few weeks.

    Please advice.
  • 08-04-2010, 12:58 PM
    Dogmatique
    Re: Can I Get Sole Custody Wife Left to Her Home Country, Left Son with Me
    File for divorce immediately and request sole custody based upon the fact that Mom has gone back to China and does not intend to return. If Mom wants visitation, let her file for visitation herself.

    The idea of using CPIAP and withholding the passport is a smart one.

    Does your son also have a Chinese passport?
  • 08-04-2010, 01:58 PM
    thehkboy
    Re: Can I Get Sole Custody Wife Left to Her Home Country, Left Son with Me
    Thank you for your reply.

    I can file but it will be really tough to serve her in China. I thought about filing and serving her when she was in CA last month but I decided against it. It is because I was still trying to work things out for the sake of my son.

    He doesn't have a Chinese passport. Thank god! China does not recognize dual citizenship.
  • 08-04-2010, 02:11 PM
    Dogmatique
    Re: Can I Get Sole Custody Wife Left to Her Home Country, Left Son with Me
    I really recommend you speak with a local divorce attorney; you're right it will be difficult to serve her while she's in China, but you may eventually be able to serve her via publication. For this reason alone you need an attorney.

    Good luck!
  • 08-04-2010, 02:27 PM
    thehkboy
    Re: Can I Get Sole Custody Wife Left to Her Home Country, Left Son with Me
    Thanks again for your reply Dogmatique.

    I consulted with a handful of attorneys. In order to serve her via publication, I will have to show that I have tried to locate/contact her with due diligence. In my case, I have a way of contacting her and I won't be able to serve her via publication.
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