Custody and Visitation Issues: Custody Rights to a Child Born Abroad

Re: Custody Rights to a Child Born Abroad

Are you familiar with Dannielynn Birkhead?

Google the case. California is only one of a handful (I believe it's only two, actually) states which allows a putative father to file a paternity action prior to birth.

Re: Custody Rights to a Child Born Abroad

Thats a complete different issue! Are you kidding me? It does not involve a NATURAL BORN citizen of another country! Have you heard about the Sean Goldman Case? thats a similar situation although very different too...
Brazilian woman marries American Man.
They have a baby in NJ
Mother leaves to Brazil with baby for vacation but never comes back.
She gets custody in Brazil (against Hague Convention), remarries and lives there for 5 years while father is here fighting to bring son back.
Result: after much media attention, Brazil HAD TO return Sean to his father. He was born in the US and had lived there for more than 6 months, regardless if he had spent already 5 years in Brazil and was a dual citizen. He was American first and Brazil could not hold Sean hostage there.
End of story.

- - - Updated - - -

PLus, her case wasnt even what you are talking about. The paternity action wasn't filed until her baby was born. So I dont know how you got the idea it was before.

Re: Custody Rights to a Child Born Abroad

(You missed the point completely, but okay)

Re: Custody Rights to a Child Born Abroad

Quote:

Quoting brisapinho

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?

If I understand you correctly, your intention is to temporarily relocate to Brazil during your pregnancy, have the baby in Brazil, then seek a custody order in Brazil? With or without notifying the father of the child's birth in Brazil? With or without notifying the father of the custody action you initiate in Brazil?

You then intend to return to the U.S. when the child is about six months old, and want us to tell you that your temporary residence in Brazil will prevent a U.S. court from ever revisiting the foreign custody order?

Quote:

Quoting brisapinho

...or visitation rights given that the baby will be a Brazilian born, although he will be a dual citizen as well?

If the child is domiciled in California, and California has jurisdiction over custody and support issues, a father can seek to enforce his rights through the California courts. If you give him notice of the legal action in Brazil and the father establishes rights through the Court in Brazil, even if we assume that the California court does not have jurisdiction to modify the order he can ask the California court to enforce the Brazilian custody and visitation order.

Quote:

Quoting brisapinho

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.

No, in the context of a child custody case it most certainly would not. A U.S. court with jurisdiction over a custody case can determine that there is reason to believe that a parent won't return the child to the U.S. if permitted to leave, and thus prohibit the parent from removing the child from the U.S. - that sort of order is issued with some regularity, as there are many nations that show little to no regard for custody orders issued by other nations. (Some of them are Hague Convention signatories, interestingly enough.)

Quote:

Quoting brisapinho

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.

You can believe what you want, but you are wrong (In re T.G.; Nawa v Baluyot; Miller v Superior Court).

Quote:

Quoting brisapinho

My question was if the courts in the USA could modify the custody order that I will be bringing from brazil.

It's possible that, once the child's domicile is established in California, the circumstances could arise for California to take jurisdiction in order to modify an existing Brazilian custody order. Whether and when that might happen will depend on the facts at the time the request is made.

Quote:

Quoting brisapinho

All the research I did says that only the court in which the child was born has jurisdiction over that child.

That's not the law in any U.S. state, nor is that a provision of the Hague Convention on the Civil Aspects of International Child Abduction.

Quote:

Quoting brisapinho

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.

We are assuming a future in which you end your temporary stay in Brazil, and that you, the father and child all permanently domiciled in California? If both parents and the child are legally domiciled in California, and the parents intend their residency in California to continue indefinitely, it's quite possible for California courts to take jurisdiction over the case .

Quote:

Quoting brisapinho

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.

I'm not going to speculate about what may or may not happen in Brazil - you can discuss Brazilian law and court proceedings with a lawyer in that nation. If you give the father notice of the Brazilian legal proceedings, I expect that he would have the right under Brazilian law to seek to establish his paternity and to establish custody or visitation rights. If you choose to keep the Brazilian legal proceedings secret, you may will find that when you move to California the courts are not willing to enforce the secretly obtained custody order due to its being issued in violation of the father's Due Process rights. (See California Family Code Sec. 3414; In re Stephanie M. ("We note also that a foreign custody order is enforceable under the act only if 'reasonable notice and opportunity to be heard were given to all affected persons'.... In this case, it appears that the Mexican order was obtained ex parte, without notice to the minor or the Department. Accordingly, it does not appear that the order is entitled to enforcement....").

Quote:

Quoting brisapinho

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.

Even if we presuppose that you gave dad notice and opportunity to participate in the Brazilian legal proceedings, that's not correct.

Quote:

Quoting brisapinho

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.

Once you relocate with the child (or, more correctly, end what you acknowledge to be a temporary relocation to Brazil followed by the resumption of your long-term residency in California), the question of "habitual residence" turns on the facts and the parties' intentions.

Quote:

Quoting Mozes v. Mozes (9th Cir. 2001) 239 F.3d 1067

Where, as here, children already have a well-established habitual residence, simple consent to their presence in another forum is not usually enough to shift it there. Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration.

If you and the child have permanently relocated to Brazil to California, a court can quite reasonably find that the child's place of habitual residence is California. Given the facts you have shared - your stated lack of intention to remain in Brazil even at the outset - the court could reasonably find that the child's connection to Brazil is exceptionally weak. Please note, the six month period you describe is not derived from the Hague Convention, but comes from the UCCJEA (U.S. law) - the Hague Convention does not define "habitual residence".

Quote:

Quoting brisapinho

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.

Perhaps you misunderstood some of what you were told; if not, you are confusing "expensive" with "qualified".

Quote:

Quoting Dogmatique

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".

This is true - if dad serves you with a paternity action while you're in California and you take off to Brazil, the jurisdictional issues become much trickier.

Quote:

Quoting brisapinho

And where did you get this "fact"?

The fact that California permits paternity cases to be filed before birth? It's right in the statutes.

Quote:

Quoting California Family Code, Sec. 7633.

An action under this chapter may be brought, an order or judgment may be entered before the birth of the child, and enforcement of that order or judgment shall be stayed until the birth of the child.

Quote:

Quoting brisapinho

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.

The only person here demonstrating haughtiness and arrogance is you; and as it stands, you are misstating the law.

Quote:

Quoting brisapinho

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.

Except... that is bad advice, even if you paid somebody $600 per hour to whisper those sweet nothings in your ear.

Quote:

Quoting brisapinho

I cant count how many friends are in worse situations because they had their babies here.

Your friends can best avoid having a baby with a father they don't want involved in their lives by abstaining from intercourse with men they don't want to be the father of their child. Once you have a baby, things get complicated.