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I am preparing to file a k1 & k2 visa at the same time. My fiance was never married to the father of her son and the father has abandon them , although he lives close by but never sees or supports the child for over 2 years. Do I need to have the father sign any form to allow the child to travel to usa?

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~Moved from K1 Process to Phil. Regional Forum~

~Inquiry is country-specific, similar topics are frequently discussed at this forum~

(organizer hat off)

Welcome to the forum.

I believe that this very topic was recently discussed from a country-specific perspective in the Phil. Regional Forum.


Completed: K1/K2 (271 days) - AOS/EAD/AP (134 days) - ROC (279 days)

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I am preparing to file a k1 & k2 visa at the same time. My fiance was never married to the father of her son and the father has abandon them , although he lives close by but never sees or supports the child for over 2 years. Do I need to have the father sign any form to allow the child to travel to usa?

Depends. If he is listed as the father on the child's birth certificate, then you may have to get his permission for the child to leave the country. If he is not listed as the father, and therefore the child is carrying his mother's maden name, then should not be a problem getting K2 and him travelling out of the country with his mother.

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No. You don't need anything from the father even if his name is listed on the BC and even if the child is using his surname. Illegitimate children in the Philippines are under full and sole custody of the mothers.

Edited by apple21

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The child is listed under the fathers last name on the birth certificate.

Thank you all for the help and advice!

Even so. You don't need the father for anything.

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No. You don't need anything from the father even if his name is listed on the BC and even if the child is using his surname. Illegitimate children in the Philippines are under full and sole custody of the mothers.

If the fathers name is on the birth certificate, then the child is not illegitimate...right? Unless you mean illegitimate becuase the parents were never married.

Not saying you will have a hard time SirMike, I would continue to research and be prepared though, cause I know people have had problems in the past.

Edited by Scott & Annie

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I am preparing to file a k1 & k2 visa at the same time. My fiance was never married to the father of her son and the father has abandon them , although he lives close by but never sees or supports the child for over 2 years. Do I need to have the father sign any form to allow the child to travel to usa?

In my opinion you could have a battle on your hands so tread lightly which you are at presently doing by receiving information on your case beforehand. She may want to seek the advise of a lawyer. (be careful of the Kano effect; meaning if the lawyer knows you are paying the price just went up)

The Philippine Law on Illegitimate Children, Art. 176 of the Family Code grants custody of illegitimate children to the mother, it was ruled in Silva v. Court of Appeals, the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children. Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.

This case was nearly identical. The children in question were illegitimate and the mother had married a foreigner. The father won the initial case, the mother won the appeal, and the Supreme Court ruled against the Court of Appeals. The only way around this is if it can be proven that the father presents a grave or imminent danger to the child, which would have to be proven with overwhelming evidence.

But here is the wolf in the henhouse (also established): If the child is illegitimate, by law, parental authority over child is vested in the mother. This is explicitly provided by the Family Code of the Philippines which states: “Article 176. Illegitimate children shall use the surname, and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this code. xxx” Likewise, parental authority is defined as follows: “Art. 209. Pursuant to the natural right and duty of parents over the person and property of their emancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.”

What can be gleaned from the aforementioned law, whoever is vested with parental authority over the person of a child shall take his/her custody. In your case she has taken custody and he is no longer involved in the child's life either through visitation for support. Considering that the law specifically designate the mother as the only parent who is vested with parental authority over her illegitimate child, it is only she who has the right over your child’s custody. This right cannot be taken from her unless there are compelling reasons to deprive you of such right and obligation as may be determined by the court. Thus, even if you are absent and cannot personally exercise such right, the father of the child cannot assume this right.

​Now when she goes to get a passport for the child she will be faced with providing documentation for the child and there are certain documents for illegitimate children. See: http://www.passport.com.ph/requirements

​I am not a lawyer and my post here only represents my opinion and nothing provided herein should be used as a substitute for advice of competent counsel.

Edited by Greenbaum

Spoiler

Adjustment of Status

AOS March 5, 2014 Submitted AOS with EAD/AP package to Chicago USICS

Delivered March 8, 2014 AOS packaged delivered to USCIS drop box

Accepted March 19, 2014 Text message with receipt numbers

Biometrics April 16, 2014 Biometrics completed

EAD May 23, 2014 Employment Authorization Document approved and went to card production

TD May 23, 2014 Travel Document approved and went for card production

Receipt EAD/AP May 30, 2014 Received combo card EAD/AP

Green Card Approved July 11, 2014 Approved, no interview. Went to card production.

Green Card received July 17, 2014 GC received without interview

Removal of Conditions

Mailed I-751 Dec 16, 2015 Submitted ROC (removal of conditions)

Received Dec 18, 2015 USPS notification of successful delivery

Check Cashed Dec 21, 2015 Check was cashed

NOA-1 Issued Dec 21, 2015 NOA-1 for ROC issued

NOA-1 Issued Dec 26, 2015 NOA-1 Received

Biometrics Appt. Jan 29, 2016 Biometrics Appointment Scheduled [Completed]

 

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Illegitimate = born out of wedlock aka parents not married

Illegitimate children can use surname of father as long as father signs acknowledgement of paternity (back part of BC).

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A lawyer I spoke with mentioned we may have a problem at POE in regards to the child will need a notarized letter or court order to let the child travel out of the country.

The child will be applying for a passport soon and I wonder if that will pose a problem?

Thanks again to all of the feedback , greatly appreciated!

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That lawyer knows nothing about immigrating from the Philippines. Lol.

As long as mother accompanies him to DFA for the passport, no issues.

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I am preparing to file a k1 & k2 visa at the same time. My fiance was never married to the father of her son and the father has abandon them , although he lives close by but never sees or supports the child for over 2 years. Do I need to have the father sign any form to allow the child to travel to usa?

The mother has sole custody of the child in the Philippines, you need nothing from the father.

A lawyer I spoke with mentioned we may have a problem at POE in regards to the child will need a notarized letter or court order to let the child travel out of the country.

The child will be applying for a passport soon and I wonder if that will pose a problem?

Thanks again to all of the feedback , greatly appreciated!

I see you spoke with a idiot... how nice. You need nothing from the father.

As said already the mother has sole custody, the mother will handle getting the passport for the child.


Hank

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We had 2 K-2's and my wife's ex-husband hadn't been in the children's lives for over 10 years. When she went to get the passport they required to see either a notice signed by him or she would be denied passports. Since he could not be found that option was not available to us. But during the adjudication of her divorce we made sure that the children were listed as under her care and that he was surrendering parental rights. It was good thing that we included that in the divorce as she was able to proceed with passports for the children.

Be sure to contact the DFA before traveling to insure you have the proper paperwork and documents for her situation so she doesn't have to make an extra trip.

DFA states that a Notarized Affidavit of Support and Consent to travel from either parent (if minor is a legitimate child) / from mother (if minor is an illegitimate child). So the mother in this case needs to provide a Notarized Affidavit of Support and Consent because she never married and the child is considered illegitimate. If she can't provide the consent then they will show her across the hall to a lawyer who sits at a desk and he completes the necessary paperwork for a fee, of course.


Spoiler

Adjustment of Status

AOS March 5, 2014 Submitted AOS with EAD/AP package to Chicago USICS

Delivered March 8, 2014 AOS packaged delivered to USCIS drop box

Accepted March 19, 2014 Text message with receipt numbers

Biometrics April 16, 2014 Biometrics completed

EAD May 23, 2014 Employment Authorization Document approved and went to card production

TD May 23, 2014 Travel Document approved and went for card production

Receipt EAD/AP May 30, 2014 Received combo card EAD/AP

Green Card Approved July 11, 2014 Approved, no interview. Went to card production.

Green Card received July 17, 2014 GC received without interview

Removal of Conditions

Mailed I-751 Dec 16, 2015 Submitted ROC (removal of conditions)

Received Dec 18, 2015 USPS notification of successful delivery

Check Cashed Dec 21, 2015 Check was cashed

NOA-1 Issued Dec 21, 2015 NOA-1 for ROC issued

NOA-1 Issued Dec 26, 2015 NOA-1 Received

Biometrics Appt. Jan 29, 2016 Biometrics Appointment Scheduled [Completed]

 

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SirMike

I'm also a k1 and I have 2 k2 and my kids is using their father's surname, but the father of my kids and I are not married so my kids are illegitimate and I didn't ask/need anything from their father even his authorization or sign, ive bee through this and done all the paper works for passport, medical and now we are ready for the interview

May I ask if you don't mind? Is this child/kids of your fiance's in birth certificate are they have a date of marriage? I'm asking because this will be a problem and the future process of the papers specially when getting a child passport...but if there is no date of marriage in the child's birth certificate then you're good to go without getting any from the father...please dont hesitate to ask from me i just want to help and share to you my little knowledge from base on my experience :)

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