How do I divorce an illegal immigrant so that I retain child custody rights? 25 Answers as of August 05, 2011

I want to know how do I divorce my wife which when I married her she wasn't legal and now we have a daughter and I want full custody of my daughter so she wont try to take my daughter. And is she a US critien now that we have been married for 4 yrs?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
You file a petition for dissolution. If your daughter was born in the US, she is a citizen.
Answer Applies to: Washington
Replied: 8/5/2011
Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
Divorce and immigration matters are handled separately. You will not get custody just because she is illegal. The Court will look at the best interests of the child and usually that is to have a strong relationship with both parents. If she was an illegal alien when you married her and you did nothing to assist her with her immigration status by petitioning for her then she may still be illegal. If you did petition her for permanent residency then you likely signed an affidavit of support which the divorce court can enforce. She should consult an immigration attorney to determine her rights to self-petition if the marriage is breaking up. If the Court determines it is in the child's best interest to be with the mother, then it would be in your best interests to assist your wife in obtaining immigration status so she can remain in the U.S. with the child and make it easier on you to have visitation or even joint custody. It is always best to work out these issues amicably if you can. You should consult a divorce attorney to advise you on your rights with regard to custody and child support, division of assets and debts, any alimony or maintenance obligations you may have.
Answer Applies to: California
Replied: 7/18/2011
Fredric H. Aaron, Attorney at Law, P.C.
Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
The issue of your wife's immigration status will probably not impact the decision over custody of your daughter. However, unless your wife filed for a green card based on the marriage, she may still be an illegal immigrant subject to removal. You should consult a matrimonial attorney with immigration law experience before taking any steps in your situation.
Answer Applies to: New York
Replied: 7/18/2011
Law Office of James Lentz
Law Office of James Lentz | James Lentz
Just because your wife was an illegal alien when you married does not necessarily mean you will be awarded sole custody. Sole custody is rare today, but in some unusual circumstances it can happen.
Answer Applies to: Ohio
Replied: 7/16/2011
Reza Athari & Associates, PLLC
Reza Athari & Associates, PLLC | Reza Athari
This is not an immigration question. You should ask your family law question from a family law attorney.
Answer Applies to: Nevada
Replied: 7/15/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Not a U.S. citizen unless she applied and was sworn in. Get a divorce by filing papers with the court, as anyone would.
    Answer Applies to: Florida
    Replied: 7/15/2011
    The Jarrett Firm, LLC
    The Jarrett Firm, LLC | Patrick Jarrett
    First, when getting a divorce, there are many considerations as to who will be awarded primary custody. Unless your wife is unfit as a parent, you will not get full custody. Courts begin with the presumption that it is in the child's best interest to have a close relationship with both parents and that it is in the child's best interest for parents to share joint legal custody. Your wife's immigration status in and of itself will not impact the child custody determination. Your wife will not have gained US citizenship just by marrying you. You first would have needed to file for her green card. If she obtained a green card, then she could naturalize.
    Answer Applies to: Georgia
    Replied: 7/15/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    If she is now a citizen then she is not an illegal. You must file for divorce and the Court would decide if you are the better parent.
    Answer Applies to: Alabama
    Replied: 7/15/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Citizenship has little if anything to do with custody. Custody is decided based on what the court feels is in the child's best interest. They will look at who cooked breakfast, took the child to the doctor, washed clothes, spent time with the child, etc. The best way to protect custody and/or visitation rights is to retain a lawyer. The best way to lose those rights is not to retain a lawyer.
    Answer Applies to: Georgia
    Replied: 7/15/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    The divorce procedure would be the same whether your spouse is a legal resident or not. Her immigration status would be one factor the court would consider in making a custody decision.
    Answer Applies to: Georgia
    Replied: 7/15/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You are incorrectly assuming that immigrant status is dispositive of anything concerning parental responsibilities. In a divorce, the court will approve an appropriate parenting plan - either on its own or by approving any agreements between you and your wife. Your daughter, if born in the US, is a US citizen; your wife is not a citizen simply by virtue of having been here for any length of time. If your wife is not a legally present individual, she obviously is at risk of being deported sometime in the future - but, that will not automatically permit her to take the child with her. The fact of her illegal status may be relevant in how a Court will set up a Parenting Plan, including where the child resides most of the time after the divorce. But, by itself her legal status doesn't require any specific result and does not change how the divorce should be handled.
    Answer Applies to: Colorado
    Replied: 7/15/2011
    Neville J. Bedford Attorney at Law
    Neville J. Bedford Attorney at Law | Neville J. Bedford
    Co-parenting after divorce is a challenge. There is always a temptation to try and terminate the other parents rights. However, this is not usually in your child(ren)'s best interest. Consider carefully the time, energy and resources you will invest(waste) in trying to have your x-spouse to be declared incompetent as a parent. Sometimes, the state intervenes to terminate parental rights when people abuse and neglect their children . . . and refuse to seek appropriate treatment or remedy the situation. In the alternative, imagine these same energies and resources being put into maximum benefit your your child and yourself. Without knowing all of the particulars, it is difficult to advise you which path to take. Regardless, consider the opportunities you may loose for any path you choose.
    Answer Applies to: Rhode Island
    Replied: 7/15/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    You should consult with an immigration attorney with any questions about your wife's status, but my understanding would be that she can't be citizen unless she has been through the naturalization process. If you file for divorce, it is up to the court to decide what the residential schedule for the child with each parent should be.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    You divorce your wife by preparing and filing legal documents to divorce her. You should confer with a family law lawyer to help you properly complete the forms. The fact that your wife was illegal when you married her has nothing to do with child custody issues. If she is here legally in the US now, because she has become a citizen then those are the facts and just by divorcing her, it wont change her current immigration status. If you want full custody of your daughter you have to know what that means.
    Answer Applies to: California
    Replied: 7/15/2011
    World Esquire Law Firm
    World Esquire Law Firm | Aime Katambwe
    You divorce her the same way that you do anyone else. She does not get to be a USC by virtue of marrying you alone. You have to petition her to become a Legal Permanent Resident 1st and then a USC. Have you done that? If not why not? Now, it is illegal to use US immigration laws in order to gain an unfair advantage on your spouse or immediate relatives. In this case, if your point is that you want to strip her of any means of remaining in the US so you can get physical custody of your child and see to it that she is deported from the US, then that will not pass muster. In fact, I would not be surprised if you found out that she is preparing to file for her LPR status under the Violence Against Women Act (VAWA) since you may not have filed a petition for her to become a LPR since you married. I would not mix the divorce matter with her immigration status. Taking care of the one will take care of the other if the timing is right. Good luck!
    Answer Applies to: California
    Replied: 7/15/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    I understand that you are headed to a divorce, and want custody of your daughter. Come see me, and I will assist you. The law on custody is pretty clear, the judge will do what is in the child's best interests. I can help you with this. And I will tell you up front what it will cost to do this for you.
    Answer Applies to: New Jersey
    Replied: 7/15/2011
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    Her status doesn't affect the process. You file for divorce asking for full custody and placement. No, she isn't a citizen unless you have filed the proper paperwork and had her citizenship approved.
    Answer Applies to: Wisconsin
    Replied: 7/15/2011
    Fong & Associates
    Fong & Associates | William D. Fong
    If you did not petition for your wife and she did not otherwise qualify for and apply for permanent residence (green card), then she is not a US permanent resident, nor is she a US citizen. Your divorce question is a family law question and unrelated to immigration.
    Answer Applies to: Texas
    Replied: 7/15/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    Neither party can cut the other party out or obtain "full custody" of a child in a divorce. Placement and custody will need to be discussed and negotiated. If the concern is leaving the country, that can be protected by writing language in the temporary or final orders.
    Answer Applies to: Wisconsin
    Replied: 7/15/2011
    Immigration Law Offices of Misiti Global, PLLC.
    Immigration Law Offices of Misiti Global, PLLC. | Nicklaus Misiti
    You file a divorce the same as any other. Speak with an attorney.
    Answer Applies to: New York
    Replied: 7/15/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    Her immigration status will probably not be an issue in your divorce. She is probably eligible for citizenship because of your marriage and if your child was born in the US. To begin the divorce process, you should file a petition for dissolution of marriage in the county in which you reside.
    Answer Applies to: Oregon
    Replied: 7/15/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    Being married to a U.S. citizen does not automatically grant the other spouse citizenship. I would assume you would divorce her just the same as any other divorce but I would need a bit more information to say for sure, for instance, where did the marriage take place (to ascertain if it was even valid).
    Answer Applies to: Illinois
    Replied: 7/15/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    The best solution is to petition the court requesting that the child's residence not be changed and to ask for you to be in possession of the child's passport
    Answer Applies to: California
    Replied: 7/15/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Even if you do not have sole custody neither of you can take the child out of the country without written consent of the other parent. You will have to discuss this further with an immigration attorney regarding your other question.
    Answer Applies to: Connecticut
    Replied: 7/15/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We strongly recommend that you retain a divorce attorney in your area ASAP to discuss all your rights and options. Good luck.
    Answer Applies to: Georgia
    Replied: 7/15/2011
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