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.

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.

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.

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Quoting brisapinho

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How can he ask the court for my child to not be removed from the US, if my child is brazilian?

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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.

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.

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

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Quoting brisapinho

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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.

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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".

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.

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?

Again, where did you get your information?

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.

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.

(You missed the point completely, but okay)

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Quoting brisapinho

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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?

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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?

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Quoting brisapinho

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

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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.

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Quoting brisapinho

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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.

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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.)

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Quoting brisapinho

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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.

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

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Quoting brisapinho

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

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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.

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Quoting brisapinho

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

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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.

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Quoting brisapinho

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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.

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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 .

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Quoting brisapinho

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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.

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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....").

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Quoting brisapinho

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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.

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

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Quoting brisapinho

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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.

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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.

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

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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.

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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".

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Quoting brisapinho

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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.

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

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Quoting Dogmatique

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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".

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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.

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Quoting brisapinho

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And where did you get this "fact"?

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

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Quoting California Family Code, Sec. 7633.

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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.

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Quoting brisapinho

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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.

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

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Quoting brisapinho

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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.

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

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Quoting brisapinho

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

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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.