Celebrating 10 years! 2007-2017

Anyone want to take a crack at it?

Can anyone untangle this one, or are they screwed? Hypo: Mo flyingsolow08/10/18
If he perfects a court order here then that's the order. The becksquire08/10/18
Is the country she fled to a party to the Hague Convention o therewillbeblood08/10/18
Let’s take a step back. Does this kid even have a US pass nyclawyer08/10/18
File before she leaves. In my state, if you stip to paternit onehell08/10/18
Does an illegal even have the right to file an action in cou fettywap08/10/18
Certainly they would for this kind of thing as a matter of e onehell08/10/18
Anyone physically in the court’s jurisdiction has a right dingbat08/10/18
Anyone physically in the court’s jurisdiction has a right dingbat08/10/18
What country are we dealing with here? Frankly, unless patenttrollnj08/10/18
Well on paper Mexico is a signatory to Hague convention and onehell08/10/18
What country are we talking about here? Without a passport nyclawyer08/10/18
Onehell is correct. Mexico is a signatory to the Hague Conve guyingorillasuit08/11/18
On paper, sure. In practice, "Hello, ICE? I left your beauti therewillbeblood08/11/18
Where in the hypo does it say the family is from Mexico or e nyclawyer08/11/18
Everyone is jumping on the Central American or Mexican examp therewillbeblood08/13/18
Could be, but it's more likely that someone trying to do an onehell08/13/18
All of you are making the assumption that these people must nyclawyer08/13/18
*does not nyclawyer08/14/18
The Dad should go home and support his kid there. tedandlisa12308/13/18
flyingsolow (Aug 10, 2018 - 3:23 pm)

Can anyone untangle this one, or are they screwed?
Hypo: Mom and dad have a child born in the USA. Both parents are illegal.
Parents are not married no parentage case was ever filed; they don't live together.

Mom wants to return to her home country b/c that's where she can get some help with the child. Father is resisting (btw, they are from the same country). If she leaves behind his back, takes the kid; he then files parentage case (while the US courts still have jurisdiction over the kid).

He can't serve her because she is gone. Is there any scenario where they extradite the kid back to the US?

look forward to your thoughts, thanks!

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becksquire (Aug 10, 2018 - 3:30 pm)

If he perfects a court order here then that's the order. Thereafter, it's a matter of getting the child. US will not likely extradite, but they will likely detain kid and mom if they re-enter.

Be mindful, we don't know the laws in their home country...they may exert jurisdiction based on citizenship alone and grant mom and award of custody her first day back...then you have dueling orders.

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therewillbeblood (Aug 10, 2018 - 3:35 pm)

Is the country she fled to a party to the Hague Convention on the Civil Aspects of Child Abduction? And does he have some evidence that the child is his?

If yes, in theory he could jump through enough hoops that he can get an order that the child be returned. Seems likely though he'd be at constant risk for deportation; all the mom has to do is call in to ICE.

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nyclawyer (Aug 10, 2018 - 4:19 pm)

Let’s take a step back. Does this kid even have a US passport? I believe both parents must consent to the issuance of the passport. Unless the mom plans on smuggling the kid across the border by land (that’s another issue).

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onehell (Aug 10, 2018 - 4:39 pm)

File before she leaves. In my state, if you stip to paternity you can get an automatic preliminary injunction that forbids removing kid from the local court's jurisdiction while the case is pending. Get her served with that and leaving the country with the kid would be an extraditable offense, though of course whether the foreign country will honor it is another matter:

https://www.justice.gov/usam/criminal-resource-manual-1957-international-parental-kidnapping

If he got a preliminary order, there is also a process to make Dept. of state aware of the order so that CBP would (hopefully) stop them at the border if she tries to escape with the kid:

https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/prevention/sean-goldman-prevention-return-act.html

If she successfully flees the country with the child before he files, you could still file and follow international service of process rules (e.g. Hague if country is a signatory) and perhaps ultimately get an extraditable warrant if she defaults. But since the foreign country might not extradite its own national, and probably won't put too high a priority on it regardless, at that point he might be better off just hiring a lawyer in the foreign country and pursuing the matter in their court system.

But the bottom line here is that an ounce of prevention is worth a pound of cure. File before she leaves and ask for a preliminary injunction or emergency temporary custody order, serve her while she's still here and make sure to get the order into the systems of CBP as described above.

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fettywap (Aug 10, 2018 - 5:31 pm)

Does an illegal even have the right to file an action in court?

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onehell (Aug 10, 2018 - 5:49 pm)

Certainly they would for this kind of thing as a matter of equal protection.

See all the cases about states which attempted to deny driver licenses to illegal immigrants, or Plyler v. doe when TX tried to deny undoc kids K-12 ed. Basically, it appears that any attempt by a state to treat people differently based on immigration status or lack thereof would have some kind of heightened level of scrutiny applied to it, and no way would such a test be passed if a state tried to say undocs couldn't file against other undocs for child support and paternity and whatnot.

A child has a right to have paternity determined, support orders fixed, etc. The only way to accomplish that is for the parents to have the right to sue and be sued. It wouldn't further any legitimate state interest to say parents can't sue each other just because of lack of legal status in the country.

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dingbat (Aug 10, 2018 - 8:31 pm)

Anyone physically in the court’s jurisdiction has a right to file

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dingbat (Aug 10, 2018 - 8:32 pm)

Anyone physically in the court’s jurisdiction has a right to file

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patenttrollnj (Aug 10, 2018 - 5:36 pm)

What country are we dealing with here?

Frankly, unless it's Canada, I'm thinking once the baby is gone, it's gone. Court order or not, it's not likely you'll be able to get it enforced.

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onehell (Aug 10, 2018 - 6:10 pm)

Well on paper Mexico is a signatory to Hague convention and if a court of competent jurisdiction in the USA had given some kind of parental interest to a person, that person would have the right to file a hague application:

https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/International-Parental-Child-Abduction-Country-Information/Mexico.html

My feeling on third world countries when it comes to them honoring their treaty obligations is basically this: If they haven't signed the treaty you're probably SOL. If they have, then at least a commitment exists on paper so now the question is whether you can turn such places' rampant corruption to your advantage.

There is at least clear channel with Mexico by which a hague abduction application can be filed. They will probably never get around to you unless you bribe the right people. But if you are willing and able to grease the right palms and a treaty is in place, you may be able to accomplish your objective.

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nyclawyer (Aug 10, 2018 - 6:53 pm)

What country are we talking about here? Without a passport that kid cannot get on a plane.

Unless, the parents are from Canada, Mexico, Central or South America where they can cross by land. Any other country mom and kid would have to fly.

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guyingorillasuit (Aug 11, 2018 - 12:25 am)

Onehell is correct. Mexico is a signatory to the Hague Convention on Abduction of Children. The child was wrongfully removed from a member state of his habitual residence. Proceedings should be commenced immediately to preclude some of the possible defenses to the Convention.

You may consider hiring private investigators in Mexico to help you track Mom down. If she has family in a certain part of Mexico, that's where I would start. Once you have the address, you can give it to the relevant authorities.

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therewillbeblood (Aug 11, 2018 - 9:53 am)

On paper, sure. In practice, "Hello, ICE? I left your beautiful country because I felt terrible that I had come in illegally. But now my terrible, abusive ex-boyfriend who is an illegal is trying to use the courts to drag my poor child back to the US. Have I mentioned he is illegal? Also I think he may be involved in MS-13, so be careful please if you talk to him."

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nyclawyer (Aug 11, 2018 - 10:34 am)

Where in the hypo does it say the family is from Mexico or even Hispanic? They could be from anywhere - Europe, Asia, or Africa.

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therewillbeblood (Aug 13, 2018 - 11:34 am)

Everyone is jumping on the Central American or Mexican example so I did the same. In any event it’s not really relevant to my point, insert drug or human trafficker for MS-13 and it’s the same thing.

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onehell (Aug 13, 2018 - 8:01 pm)

Could be, but it's more likely that someone trying to do an international parental child abduction is heading somewhere they can get to by land crossing. The US and Canada check everyone coming in, and airports will check your documents like 3-4 times before you get onto the plane or get out of the airport at your destination.

But at land crossings into Mexico, especially the places where you can just walk across, there's frequently little more than a turn style and no one even checks your ID. It's just the most likely country for a hypo like this.

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nyclawyer (Aug 13, 2018 - 9:32 pm)

All of you are making the assumption that these people must necessarily be Hispanic. Not the case at all.

Anyone can self deport. Many people are visa overstays. Meaning they first arrived to the USA with a passport. They can fly out at any time thereafter. So the question in this hypo becomes does this kid have a passport. Both parents must consent to the issuance of the passport unless the mom has proven sole custody.

Also, citizens from MANY other countries do a land crossing via Mexico. Just because they are EWI via Mexico, do not necessarily make them Mexican citizens.

For example, Romanian, Indian, and Nigerian nationals cross illegally via Mexico.

They can be from anywhere.

"It's a common misconception that we just arrest Mexicans - that couldn't be further from the truth," said El Centro agent Justin Casterhone. "We arrest people from all over the world."

foxnews.com/us/2018/08/10/india-nationals-illegally-crossing-us-mexico-border-in-record-numbers-pay-smugglers-up-to-25g.html

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nyclawyer (Aug 14, 2018 - 9:25 am)

*does not

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tedandlisa123 (Aug 13, 2018 - 12:57 pm)

The Dad should go home and support his kid there.

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