My wife and I have been married 9 years. We have a 14 month old child. We have not filed for divorce and are seeking counseling to resolve our marital issues. I am an American citizen and she is from the Philippines. Although being eligible for citizenship 4 years ago, she recently applied and became a citizen. When we get in a fight, she threatens to take our child and leave the country. If our marriage were to end, she would return to the Philippines.
1. What do I do if my wife takes our child and leaves the country (prior to filing for divorce)?
2. Is there anything i can do to stop it?
3. If a divorce occurs, how can I win full custody of our child? or can I? Partial custody wont be an option, because my wife will not stay in the country.
4. What can I be doing now to build a case for full custody?
5. Although things might work themselves out okay and we wont get divorced, is there anything else i should be aware of or be doing now to protect myself and the child?
1 Answer from Attorneys
1. Do not let her leave the country with the child. A child needs a passport to enter the Philippines. Make sure you have the passport at all times. If the child does not yet have a passport, then as of 2008 getting a passport requires the signatures of both parents. http://www.travel.state.gov/passport/get/minors/minors_834.html
2. Generally, a person cannot leave the country with a child without either proof that the other parent is dead, has consented, or the traveling parent has sole custody (or sole managing conservatorship in TX). Do not sign any travel consent forms. Also put your child's name on the U.S. passport name-check system. The Children's Passport Issuance Alert Program provides notification to parents of passport applications made on behalf of minor children, and Denial of passport issuance if appropriate court orders are on file with CPIAP.
3. A court in Texas will want to award Joint Managing Conservatorship but will require that the primary residence of the child remain in Texas--if you demand it and stay active in the child's life.
4. There is no such thing as "full custody" in Texas. We have a conservatorship system. There is sole managing conservatorship, joint managing conservatorship, and possessory conservatorship. PC is not relevant to your case. SMC is extremely rare because the state legislature has instructed judges to use JMC unless a parent can show by clear and convincing evidence that SMC is in the child's best interest. Conservatorship has to do with who gets to make decisions for the child. Therefore, your best bet is to seek JMC and either have independent rights and duties or, better yet, try to get as many rights designated to you EXCLUSIVELY. The more exclusive rights you have, the more JMC acts like SMC.
5. You should invest in a consultation with a local family law attorney. These web sites just can't provide the kind of detailed advice that you need when you child's safety and well-being are on the line.
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