Possibility of ex-spouse creating problems at the Embassy

[SparklePony 238]

Hello, all,

I'm in the middle of a court process to get full custody of my children so I can take them with me to the US - at this point we have shared custody and I have main guardianship (they live with me), and my ex-husband moved to another country last year (yet he refuses to sign the authorization). I'm getting a scan of the Readiness Form I received in Packet 3, a scan of the envelope from the Embassy, and a screenshot of my CEAC status, as proof of my pending visa process. At this point I'm only sending this to my lawyer, so it may be that my ex won't even get to see the scans, but my fear is that if he does, in possession of my case number, he might try to contact the Embassy and create problems for me.

Has anyone had any experience with this? Do you know if this happens often or not?

Comments, thoughts, suggestions are welcome. Thank you.

[baron555 934]

You NEED signed and notarized letter from the ex giving permission for the children to immigrate and permanently reside in the US and to visit back to the home country and then return back to the US. This language must be in the letter. You don't need full custody but you need this letter. Email the Embassy and ask specifically what they will want to see. This is a deal breaker and it is suggested that you obtain this prior to any filing for a visa petition.

[Girl from Celebes 588]

The embassy only respond to the beneficiary which I do remember, they asked me to replied back in a specific style of email. Small chance that your former husband can create a problem for your visa approval but I guess you have to be aware of possibility that even your children visas are approved, without a permission from their biological father, probably according to the family law in your country won't allow them to leave. But, if he lives in another country, it should not be a problem.

[Harpa Timsah 13,258]

I don't think the consulate would take the claims of a jilted exhusband very seriously. Don't worry about that. Worry about getting the children's permission. Best of luck.

[SparklePony 238]

The letter in Packet 3 stated that if there is sole custody, that the court decision stating so must be presented. I may have misunderstood this part in thinking that with the sole custody the other parent's authorization isn't needed. I'll definitely email the Embassy and ask. Once I am given sole custody (if I am, there's always a chance I won't be), the children will be allowed to leave the country without his authorization.

So, what happens in cases where the petitioner can't reach the other parent and has no possible way of obtaining the authorization? Is there no way around this, even if court-approved on the father's behalf?

[Harpa Timsah 13,258]

My understanding is that is up to the courts and laws in the local country, so I am not sure anyone here knows exactly the ins and outs in Portugal because there is no universal solution.

[LibCampFireClub 635]

In your first post you said that you and your ex-husband have shared-custody of the children. Unless the children are over 18, or he has signed a legal release of his legal custody, then you will need his permission to have the children accompany on a K2.

[SparklePony 238]

We have shared custody now, but I have already filed with Juvenile Court for sole custody, asking specifically for permission to have the kids live with me in the US and asking specifically that only my authorization be needed for when they leave the country. So, if it goes through (which my lawyer says there's a high likelihood it will), I will have court-approved sole custody, authorization to take them out of the country and authorization for them to reside with me out of the country.

I hope it's enough.

I've emailed the embassy explaining the situation with the same details I explained here. We'll see what they say.

In the meantime, any other comments are appreciated.

Thanks, guys.

[Girl from Celebes 588]

I think, just learned from what I studied before, when you won sole custody it means allow you to bring your children out from the country even without their biological father permission. But the thing is, when the court is about to make decision, present of the father is a must -or at least his lawyer- and you stated that you can't reach him anywhere.

Legal custody hearing is usually involved both parties, mother and father or their behalf. Specially if it is shared custody. And think about if he makes appeal for the court decision. I don't know anything about family law in Portugal but you have more things you need to discuss with your lawyer.

Edited April 3, 2014 by Girl from Celebes

[SparklePony 238]

Oh, no, I never said I couldn't reach him - I did and he refused to sign the letter. He has been notified by the court regarding my petition and has replied. He has his own lawyer involved to represent him at the hearing, given he no longer resides here (unless the court schedules the hearing for a date when he's visiting). So, it wouldn't get done without his knowledge.

[Girl from Celebes 588]

I think you are good to go then. When you won sole custody - which is I hope - it means your children are free to leave. And his permission no longer is needed unless he makes appeal to the court decision. Have you asked your lawyer a possibility your former husband will make appeal if he lost the custody?

[Tina and Johan 206]

We have almost the same situation here. He has gotten full permission from the court to relocate with his son (before we applied for the K1), and his ex-wife agreed to this, before knowing that we are planning on them moving here to the US. I'm interested to see how your embassy handles this. We frontloaded the court documents with our petition, but now I wonder if we'll ALSO need a signed and notarized letter from his ex.

Good luck! I can't imagine you having problems relocating your children when their father doesn't even live in Portugal.

[Gosia & Tito 199]

The letter in Packet 3 stated that if there is sole custody, that the court decision stating so must be presented. I may have misunderstood this part in thinking that with the sole custody the other parent's authorization isn't needed. I'll definitely email the Embassy and ask. Once I am given sole custody (if I am, there's always a chance I won't be), the children will be allowed to leave the country without his authorization.

So, what happens in cases where the petitioner can't reach the other parent and has no possible way of obtaining the authorization? Is there no way around this, even if court-approved on the father's behalf?

The answer in many countries is 'by publication'; that is, a legal petition is submitted to a court for the authorization, indicating the whereabouts of parent are unknown; the court would in that case order publication of the legal case (you might need to explicitly ask, depending on the country) and give a specified length of time, usually a few weeks for a reply; if the time is up, it is assumed settled.

The specifics vary country to country. In some cases, the court would appoint a lawyer for the father in abscence.

First thing is to check with your attorney if that is possible under the country law.

[2018JourneyDone 77]

My fiance has sole legal custody of his daugher but the consulate still requested a letter, notarized, from his daughter's mother that she was aware and agreed to allow her daughter to leave the country. Without this, he would have been approved for his visa and ok to travel but they would not allow his daugher to leave the country. This may vary by consulate so best get familiar with how things operate with the specific consulate you are dealing with. Sole legal custody is not necessarily a free-pass for the child to leave the country without certain other measures taking place first.

Even though the father is not in the country, this has no bearing (typically) on whether the children are free to leave the country where the custody was granted. The father does not have the child/children and is free to relcate wherever his heart desires. Typically, the children still need the ok to be relocated, be the OK be given by the court or the non-custodial parent or both. Most often, the non-custodial parent has to be notified and has the right to contest the move. Again, I do realize this varies from country to country which is why it is a MUST to contact your particular juristiction/court/consulate and find out what the requirements are above and beyond the sole custody ppwk.

[SparklePony 238]

Just received the email reply from the Embassy, with this:

"In answer to your inquiries, we would like to confirm you that as the father refuses to give an authorization letter for your 2 children , the Court decision should be enough."

So, cross your fingers for me.