Question of DS-156/156K for "fatherless" child [Archive]

Dad of 3

11-21-2003, 11:05 PM

On the DS-156/156K, the embassy requests information regarding immediate
relatives and/parent of the visa beneficiary. My daughter's (legally my
step-daughter) birth certificate does not list a father becaue at the
time of her birth, my wife was not married and the father who acted as
the "sperm donor" has chosen to abandon his daughter in favor of a "new
family." He has seen the child once (in 1999) in seven years and has no
involvement in the child's life of any kind/

When my wife applied for the child's passport, she was not requred to
obtain a clearnace from DSWD and even though she will obtain a DSWD
travel certificate, my wife has been advised she does not need a travel
document to take my daughter out of the Philippines because there is no
father on the birth certificate.

My wife was involved with only one man at the time she got
pregnant....so she believes she knows who the father is. However, he is
not on the BC and a court has not adjudicated him as the child's father.
My wife WILL HAVE thw DSWD travel clearance with her at the interview to
so it can be produced if asked for.

So here is my question. How do we answer questions on the paperwork
asking for the name/information of the child's father?

Does she answer by giving the name of the person she belives is
the father?

Does she go to a local attorney to give her a written legal opinion that
according to Philippine law, the child has no legal father and then
attach that opinion to the form?

Does she leave it blank and attach a note or a yellow sticky indicating
she will talk about it with the consular officer at the interview?

Does she put N/A

Does she leave it blank?

We want to be completely honest and upfront with everything and make
sure all the information requested is truthfully provided. However, the
best way to respond to questions regarding the child's father is still
puzzling me.

Can anyone help?????

Florida Man

___________________________

08-05-03 Wedding

08-18-03 I-130 Received by TSC

08-23-03 NOA1 Received from TSC

08-29-03 I-129F Received by MSC

09-03-03 NOA1 from MSC Received

11-19-03 I-129F for K3 Visa Approved

--
Posted via http://britishexpats.com

mrtravel

11-21-2003, 11:59 PM

Dad of 3 wrote: On the DS-156/156K, the embassy requests information regarding immediate relatives and/parent of the visa beneficiary. My daughter's (legally my step-daughter) birth certificate does not list a father

In my opinion, there is no father. The birth certificate backs you up on
this. However, you might want to attach a note pointing this out and
explaining it.
Does she put N/A

I think this would be "NONE", but that is a non legal opinion.

mrtravel

11-21-2003, 11:59 PM

Folinskyinla

11-22-2003, 05:22 AM

Originally posted by Dad of 3
On the DS-156/156K, the embassy requests information regarding immediate relatives and/parent of the visa beneficiary. My daughter's (legally my step-daughter) birth certificate does not list a father becaue at the time of her birth, my wife was not married and the father who acted as the "sperm donor" has chosen to abandon his daughter in favor of a "new family." He has seen the child once (in 1999) in seven years and has no involvement in the child's life of any kind/

When my wife applied for the child's passport, she was not requred to obtain a clearnace from DSWD and even though she will obtain a DSWD travel certificate, my wife has been advised she does not need a travel document to take my daughter out of the Philippines because there is no father on the birth certificate.

My wife was involved with only one man at the time she got pregnant....so she believes she knows who the father is. However, he is not on the BC and a court has not adjudicated him as the child's father. My wife WILL HAVE thw DSWD travel clearance with her at the interview to so it can be produced if asked for.

So here is my question. How do we answer questions on the paperwork asking for the name/information of the child's father?

Does she answer by giving the name of the person she belives is the father?

Does she go to a local attorney to give her a written legal opinion that according to Philippine law, the child has no legal father and then attach that opinion to the form?

Does she leave it blank and attach a note or a yellow sticky indicating she will talk about it with the consular officer at the interview?

Does she put N/A

Does she leave it blank?

We want to be completely honest and upfront with everything and make sure all the information requested is truthfully provided. However, the best way to respond to questions regarding the child's father is still puzzling me.

Can anyone help?????

Florida Man
___________________________
08-05-03 Wedding
08-18-03 I-130 Received by TSC
08-23-03 NOA1 Received from TSC
08-29-03 I-129F Received by MSC
09-03-03 NOA1 from MSC Received
11-19-03 I-129F for K3 Visa Approved

Dear Dad:

I'm afraid you've got a way bigger problem than what to put on the form.
Do recall that a requirement for K-1 issuance is that the applicant is
FREE TO MARRY. In the Phillippine context, your fact pattern raises
that issue in spades.

Unfortunately, it is not uncommon for a visa petition to be approved by
INS/CIS and for the problems to arise in Manila.

Several facts:

No divorce in the Phillippines.

Cultural predilection of Filipino men to marry their girlfriends if they
knock them up.

High rate of visa fraud in Manila.

You are QUITE interested in your stepchild's biolgocial father. You
want to get as much information on him as possible.

Has another "family" you say? Well, get the birth certificates of HIS
children. Is he married? [I sure hope so]. Get his marriage
certficate. Find out where lives and be prepared to provide that
information.

Your wife is walking into a hornets nest and needs to be armed.

You may want to get an attorney who is experienced in dealing with
Manila problem cases.

Good luck.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

Posted via http://britishexpats.com

Folinskyinla

11-22-2003, 05:22 AM

Dad of 3

11-22-2003, 07:15 AM

Originally posted by Folinskyinla
Dear Dad:

I'm afraid you've got a way bigger problem than what to put on the form. Do recall that a requirement for K-1 issuance is that the applicant is FREE TO MARRY. In the Phillippine context, your fact pattern raises that issue in spades.

Unfortunately, it is not uncommon for a visa petition to be approved by INS/CIS and for the problems to arise in Manila.

Several facts:

No divorce in the Phillippines.

Cultural predilection of Filipino men to marry their girlfriends if they knock them up.

High rate of visa fraud in Manila.

You are QUITE interested in your stepchild's biolgocial father. You want to get as much information on him as possible.

Has another "family" you say? Well, get the birth certificates of HIS children. Is he married? [I sure hope so]. Get his marriage certficate. Find out where lives and be prepared to provide that information.

Your wife is walking into a hornets nest and needs to be armed.

You may want to get an attorney who is experienced in dealing with Manila problem cases.

Good luck.

Dear Folinskyinla:

Thanks for the reply to my post. For ALL the reasons you list, I fully
expect that after the visa interview, the case will be put on
"Administrative Review" so the embassy can look into much of what you
say. However, from reading your response, I think I may not have
explained everything clearly.

We have never been involved in the K-1 process. The approval of our I-
129F was from MSC and was for a K3/k4 visa. My wife and I were married
in the Philippines. This is my wife's only marriage.

The person my wife belives is the father did not marry someone
else until my daughter (stepdaughter) was already 3 or 4. So if my wife
listed this person as the "father" on the DS-156/156K when first filling
out the forms, and the embassy did a marriage index check, they would
find that at the time of the birth of my daughter, both individuals were
single making the child "illegitimate" (a term I truly dislike) under
Philippine Law.

Does that change your impresssions on my original post?

--
Posted via http://britishexpats.com

Dad of 3

11-22-2003, 07:15 AM

HunterGreen

11-22-2003, 07:28 AM

I am following this thread with much interest - because I have been
trying to word this exact same question. The only difference being the
country (in my case, The Netherlands).

Folinskyinla, may I ask - the comments you posted are only in relation
to the Phillippines situation, correct?

Elaine :)

--
Posted via http://britishexpats.com

HunterGreen

11-22-2003, 07:28 AM

Folinskyinla

11-22-2003, 09:20 AM

Originally posted by HunterGreen
I am following this thread with much interest - because I have been trying to word this exact same question. The only difference being the country (in my case, The Netherlands).
Folinskyinla, may I ask - the comments you posted are only in relation to the Phillippines situation, correct?

Elaine :)

Hi:

I was talking about Manila. Every consulate has it quirks -- and they
can change. One of AILA's best publications is the Consular Guidebook
-- for two editions I was the author of the article on Seoul.

In writing these articles, we invite the input of the consulate
themselves -- there is a set questionairre by which we ask THEM as to
where they see problems. [I'm forever greatful to the #2 Visa Chief
back then for the phrase "There is no such thing as an F-3 visa" but
I digress].

In attorney chat groups, we often invite comments on particular
consulates.

In the case of Manila -- when a USC petitions for an unmarried woman and
her child -- two questions arise -- is she really married to the father
of the child or was the child an "occupational hazard"? [It also pays
to note that one of the "classic" Filipino frauds is immigrating as the
"unmarried son/daugther" of a permanent resident when, in fact, they
married. Another is immigrating on the parent's petition filed long ago
and "forgetting" to mention that the petitoner is deceased. I roll my
eyes when I see the "classics" -- the consulate knows them too. I'm
more impressed when I see a NEW one -- not that I approve, but I do
admire cleverness].

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

Posted via http://britishexpats.com

Folinskyinla

11-22-2003, 09:20 AM

angelmaries

11-22-2003, 03:35 PM

hi. im also interested in your case because my friend who is filipina
is about to marry her US citizen bf in the philippines. Very same
circumstance for she has a son but not married to the father. It
should be noted that in the Philippines the child cant use the fathers
surname/last name unless the parents are married to each other even
when the father acknowledged the child. If they are married it will
definitely shows in the childs birth certificate......thats how it is
then & up to now. So if the woman has a child it can be trace when she
undergo the physical/medical exam which leading to asking for her
childs birth certificate, there they can see if she's married! i know
somebody who got caught this way........

angelmaries

11-22-2003, 03:35 PM

Dad of 3

11-22-2003, 04:12 PM

[Originally posted by Folinskyinla
Hi:

I have never done a K through Manila, neither K-1, nor K-3. However, I have done numerous I-130's in the past.

Acutally, I think it is good that the child is listed as illegitimate. I would not be surprised if the "administrative review" includes the embassy getting a copy of the birth certificate directly from the local clerks. You might want to consider getting a NEW copy so that you have copies issued at two different times -- it would be highly unlikely that you bribed TWICE to get a fraudulent document.

Even if bio-dad married afterwards, it is a good thing to bring forward. You have story which you have set forth above -- document it!

I would also document your wife's working history. If she was a working a regular job eight years ago, then there is less chance that the child was an "occupational hazard" [unless, of course, the father was her boss at the job -- then the "occupational hazzard" can be a good thing in this context].

In Manila, your step-daughter will create a "guilty until proven innocent" situation which you should try to meet in advance. An administrative reveiw which is totally internal can be short.

Good luck.

Folinskyinla and Angelmaries:

Thank you both for your suggestions. All are helpful. After reviewing
your posts and others from two boards that focus on Filipino Immigration
Issues, my wife and I think we will do the following:

1. As it so happens, we have multiple certified copies of the child's
birth certificate from NSO (National Statistics Office) on their
Special Security Paper (SECPA) because we will need them for the
Adjustment process. The US Embassy does not accept certified copies
of BC from local registrars in part, I am sure, due to fraudulent
documetns. While NSO does not put a date of issueance on the
Certified document, each document has a unique serial number. So
with two serial numbers that are not even close to each other...that
should accomplish the same goal.

Also, I think the color and background of the SECPA has changed in
between the issuance of the first BC and the one that just got two
weeks ago.

2. I will send an explanatory letter saying my wife has told me the
following facts and then set them out. That way if there is any
question about what I do or do not know, that will be laid to rest
immediately.

3. To show that my daughter was not an occupational hazard (as well to
assist in establishing a bone fide relationship/marriage), we are
going to get two or three affidavits from people who worked with
her both before and after my wife were pregnant. She worked at the
largest chain of jewelry store/pawnshops in the Philippines. One
of these people have known my wife for over 20 years so, hopefully,
that will be helpful in taking down any red flags that go up.

4. I NEVER knew that a woman who is not married to the father could not
use the father's name even if the father acknowledges parternity.
That is really interesting and of course, is the situation with my
daughter. Also, based on other posts I have read, my wife will
have certified copies of her hospital records from the time of birth
of her daughter along with lots and lots of childhood pictures.

I agree that in Manila, one is guilty until proven innocent which is why
I ask lots of questions in advance (maybe part of the lawyer in me) so I
can solve issues before they become a problem.

Thank you everyone for such great help.

Dad of 3

--
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Dad of 3

11-22-2003, 04:12 PM

Folinskyinla

11-22-2003, 04:34 PM

Originally posted by Dad of 3
[

Folinskyinla and Angelmaries:

Thank you both for your suggestions. All are helpful. After reviewing your posts and others from two boards that focus on Filipino Immigration Issues, my wife and I think we will do the following:

1. As it so happens, we have multiple certified copies of the child's birth certificate from NSO (National Statistics Office) on their Special Security Paper (SECPA) because we will need them for the Adjustment process. The US Embassy does not accept certified copies of BC from local registrars in part, I am sure, due to fraudulent documetns. While NSO does not put a date of issueance on the Certified document, each document has a unique serial number. So with two serial numbers that are not even close to each other...that should accomplish the same goal.
Also, I think the color and background of the SECPA has changed in between the issuance of the first BC and the one that just got two weeks ago.

2. I will send an explanatory letter saying my wife has told me the following facts and then set them out. That way if there is any question about what I do or do not know, that will be laid to rest immediately.

3. To show that my daughter was not an occupational hazard (as well to assist in establishing a bone fide relationship/marriage), we are going to get two or three affidavits from people who worked with her both before and after my wife were pregnant. She worked at the largest chain of jewelry store/pawnshops in the Philippines. One of these people have known my wife for over 20 years so, hopefully, that will be helpful in taking down any red flags that go up.

4. I NEVER knew that a woman who is not married to the father could not use the father's name even if the father acknowledges parternity. That is really interesting and of course, is the situation with my daughter. Also, based on other posts I have read, my wife will have certified copies of her hospital records from the time of birth of her daughter along with lots and lots of childhood pictures.

I agree that in Manila, one is guilty until proven innocent which is why I ask lots of questions in advance (maybe part of the lawyer in me) so I can solve issues before they become a problem.

Thank you everyone for such great help.

Dad of 3

Hi:

Sounds good to me. Manila actually appreciates stuff like this.

Further point -- if applicable, she should bring the visa history of
herself, her brothers/sisters and parents.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

Posted via http://britishexpats.com

Folinskyinla

11-22-2003, 04:34 PM

Cdn Chick

11-22-2003, 11:09 PM

Hi There,

I can answer your question directly.... From a "legal" standpoint - your
stepdaughter has "no father". I am in the exact situation. My son's
father is NOT on the birth certifcate. I put NONE under all questions that
asked about the father's information.... I came into the US on a K1 (my
son on a K2) - no problems with anything anywhere. I have not even had one
person question ANYTHING!

"Dad of 3" <member16779@british_expats.com> wrote in message
news:1078345.1069484749@britishexpats.com... On the DS-156/156K, the embassy requests information regarding immediate relatives and/parent of the visa beneficiary. My daughter's (legally my step-daughter) birth certificate does not list a father becaue at the time of her birth, my wife was not married and the father who acted as the "sperm donor" has chosen to abandon his daughter in favor of a "new family." He has seen the child once (in 1999) in seven years and has no involvement in the child's life of any kind/ When my wife applied for the child's passport, she was not requred to obtain a clearnace from DSWD and even though she will obtain a DSWD travel certificate, my wife has been advised she does not need a travel document to take my daughter out of the Philippines because there is no father on the birth certificate. My wife was involved with only one man at the time she got pregnant....so she believes she knows who the father is. However, he is not on the BC and a court has not adjudicated him as the child's father. My wife WILL HAVE thw DSWD travel clearance with her at the interview to so it can be produced if asked for. So here is my question. How do we answer questions on the paperwork asking for the name/information of the child's father? Does she answer by giving the name of the person she belives is the father? Does she go to a local attorney to give her a written legal opinion that according to Philippine law, the child has no legal father and then attach that opinion to the form? Does she leave it blank and attach a note or a yellow sticky indicating she will talk about it with the consular officer at the interview? Does she put N/A Does she leave it blank? We want to be completely honest and upfront with everything and make sure all the information requested is truthfully provided. However, the best way to respond to questions regarding the child's father is still puzzling me. Can anyone help????? Florida Man ___________________________ 08-05-03 Wedding 08-18-03 I-130 Received by TSC 08-23-03 NOA1 Received from TSC 08-29-03 I-129F Received by MSC 09-03-03 NOA1 from MSC Received 11-19-03 I-129F for K3 Visa Approved -- Posted via http://britishexpats.com

Cdn Chick

11-22-2003, 11:09 PM

mrtravel

11-23-2003, 12:38 AM

Cdn Chick wrote:
Hi There, I can answer your question directly.... From a "legal" standpoint - your stepdaughter has "no father". I am in the exact situation. My son's father is NOT on the birth certifcate. I put NONE under all questions that asked about the father's information.... I came into the US on a K1 (my son on a K2) - no problems with anything anywhere. I have not even had one person question ANYTHING!

Cdn chick.. I know what you are saying, and that was my original
opinion, but this is the Philippines, not Canada and there are cultural
issues that may lead the consular people to suspect something.

mrtravel

11-23-2003, 12:38 AM

HunterGreen

11-23-2003, 07:58 AM

Thank you Cdn Chick and Mr. Travel, your replies were very
helpful to me.

Dad Of 3, wishing you the best of luck!

Elaine :)

Originally posted by Cdn Chick

I can answer your question directly.... From a "legal" standpoint -
your stepdaughter has "no father". I am in the exact situation. My
son's father is NOT on the birth certifcate. I put NONE under all
questions that asked about the father's information.... I came into
the US on a K1 (my son on a K2) - no problems with anything anywhere.
I have not even had one person question ANYTHING!

--
Posted via http://britishexpats.com

HunterGreen

11-23-2003, 07:58 AM

Folinskyinla

11-23-2003, 08:53 AM

Originally posted by Cdn Chick
Hi There,

I can answer your question directly.... From a "legal" standpoint - your
stepdaughter has "no father". I am in the exact situation. My son's
father is NOT on the birth certifcate. I put NONE under all questions that
asked about the father's information.... I came into the US on a K1 (my
son on a K2) - no problems with anything anywhere. I have not even had one
person question ANYTHING!

Hi:

If you will note that my discussion with Dad of 3 involved dealing
with MANILA, not Montreal -- and my answers did NOT deal with
paternity issues.

Notionally speaking, your son's paternity was not legally relevant to
the case. The only "paternity/maternity" issue was that he was YOUR
son. And under the immigration laws, that was sufficient.

You will find out quite quickly that your son DOES have a "father"
["sperm donor"] if it ever becomes legally relevant. An example would
be if your husband decided to do a "step-parent" adoption here in
California. You MUST get the father's consent -- and the only way it
will be excused [by "abandonment"] finding requires NOTICE to father.
And if you don't "know" who the "father" is, you will have a hell of
time proving that.

Also, lets say when your son grows up, he decides he wants to know who
his "real" father was [and it is not an uncommon situation], not only
will it be uncomfortable for you, he could IMMIGRATE bio dad.

Immigration aside -- what if you die in an automobile accident -- who
will take care of your son? Absent a step-child adoption, biological
dad just might have rights and obligations.

Immigration aside -- this is something you just might want to look into.
If you love your son, which I believe you do, you may have some mighty
huge loose ends hanging in his life.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

Posted via http://britishexpats.com

Folinskyinla

11-23-2003, 08:53 AM

HunterGreen

11-23-2003, 09:12 AM

In regard to what Folinskyinla just posted... This is about paternity
issues. I have trouble wording this in English but please bear with me.

Under our national law it is possible to have my boyfriend added to DD's
birth certificate as her father, and he'd get legal custody over her
(together with me). Would this be acknowledged under US law?

This is not meant for immigration purposes, it's something we've
been wanting to do even before we decided on the US as our family's
future homeland.

I've tried finding info on the 'net but all it comes up with is sites
and sites full of information for people battling over custody...
nothing the other way around.

Elaine :)

--
Posted via http://britishexpats.com

HunterGreen

11-23-2003, 09:12 AM

HunterGreen

11-23-2003, 09:15 AM

Originally posted by Folinskyinla
Immigration aside -- what if you die in an automobile accident -- who will take care of your son? Absent a step-child adoption, biological dad just might have rights and obligations.

I know you weren't asking me, but I have a will that takes care of
everything. This includes rights to my boyfriend who is not her
biological father but is the only father my DD has ever known. Little
bit drifting off topic with this, just wanted to mention it though.

Elaine :)

--
Posted via http://britishexpats.com

HunterGreen

11-23-2003, 09:15 AM

Cdn Chick

11-23-2003, 11:12 AM

Hmm - not sure if you were directing this to me Folinskyinla .. but, my son
does actually have a "father" - he's just not listed on the birth
certificate - so I have sole custody. To me, this means that I don't need
his fathers "permission" to do anything... I could, at any time, leave
Canada with my son whenever I wanted without "asking" him and I don't need
to "ask" his permission for a whole host of other things. He's pretty much
been an absentee father for my son's life (he's 15) - however, my son does
have a relationship with him.

As far as who takes of him if something were to happen to me - I have a will
that states that my parents are to take care of him - which my son's father
could very well dispute if he felt like it. My parents also filed for
guardianship when my son was very young so that they wouldn't need
permission from anyone to take him anywhere and they could seek medical
attention and whatnot for him if the need arose (he spends alot of time with
my parents every summer).

So, trust me, I've had to deal with this issue for over 15 years - and, in
my own experience, it was just a hell of alot easier to put "none" on the
birth certificate - knowing 15 years ago - that I would be fighting an
uphill battle the entire time!! Otherwise - at this point, my son's father
would NEVER have "allowed" me to move to the US with my son.

"Folinskyinla" <member4043@british_expats.com> wrote in message
news:1079997.1069606427@britishexpats.com... Originally posted by Cdn Chick Hi There, I can answer your question directly.... From a "legal" standpoint - your stepdaughter has "no father". I am in the exact situation. My son's father is NOT on the birth certifcate. I put NONE under all questions that asked about the father's information.... I came into the US on a K1 (my son on a K2) - no problems with anything anywhere. I have not even had one person question ANYTHING! Hi: If you will note that my discussion with Dad of 3 involved dealing with MANILA, not Montreal -- and my answers did NOT deal with paternity issues. Notionally speaking, your son's paternity was not legally relevant to the case. The only "paternity/maternity" issue was that he was YOUR son. And under the immigration laws, that was sufficient. You will find out quite quickly that your son DOES have a "father" ["sperm donor"] if it ever becomes legally relevant. An example would be if your husband decided to do a "step-parent" adoption here in California. You MUST get the father's consent -- and the only way it will be excused [by "abandonment"] finding requires NOTICE to father. And if you don't "know" who the "father" is, you will have a hell of time proving that. Also, lets say when your son grows up, he decides he wants to know who his "real" father was [and it is not an uncommon situation], not only will it be uncomfortable for you, he could IMMIGRATE bio dad. Immigration aside -- what if you die in an automobile accident -- who will take care of your son? Absent a step-child adoption, biological dad just might have rights and obligations. Immigration aside -- this is something you just might want to look into. If you love your son, which I believe you do, you may have some mighty huge loose ends hanging in his life. -- Certified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization Posted via http://britishexpats.com

Cdn Chick

11-23-2003, 11:12 AM

Dekka's Angel

11-23-2003, 11:23 AM

mrtravel

11-23-2003, 11:41 AM

HunterGreen wrote:
In regard to what Folinskyinla just posted... This is about paternity issues. I have trouble wording this in English but please bear with me. Under our national law it is possible to have my boyfriend added to DD's birth certificate as her father, and he'd get legal custody over her (together with me). Would this be acknowledged under US law?

It would seem this would be similar to an adoption in the country,
making him the legal parent, correct?? For instance, our daughter has
an amended California Birth Cert showing me as the father. If the legal
procedure in the other county allows him on the birth cert, does it not
also give him parental rights?

If he is the legal parent, then it would seem the child would NOT get a
US immigrant visa, but could get the documenation for a US citizen born
abroad and get a US passport.

(Not a legal opinion, but definitely an opinion)

mrtravel

11-23-2003, 11:41 AM

Folinskyinla

11-23-2003, 12:08 PM

Originally posted by HunterGreen
I know you weren't asking me, but I have a will that takes care of everything. This includes rights to my boyfriend who is not her biological father but is the only father my DD has ever known. Little bit drifting off topic with this, just wanted to mention it though.

Elaine :)

Hi Elaine:

A will is an excellent idea and I applaud you. However, one question
arises in my mind and I will admit that I don't know the precise answer:

Can you expressions in a will [which "speaks" as of the date of your
death] supercede the rights of a natural father?

You might want to look into that.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

Posted via http://britishexpats.com

Folinskyinla

11-23-2003, 12:08 PM

Folinskyinla

11-23-2003, 12:22 PM

Originally posted by Cdn Chick
Hmm - not sure if you were directing this to me Folinskyinla .. but, my son
does actually have a "father" - he's just not listed on the birth
certificate - so I have sole custody. To me, this means that I don't need
his fathers "permission" to do anything... I could, at any time, leave
Canada with my son whenever I wanted without "asking" him and I don't need
to "ask" his permission for a whole host of other things. He's pretty much
been an absentee father for my son's life (he's 15) - however, my son does
have a relationship with him.

As far as who takes of him if something were to happen to me - I have a will
that states that my parents are to take care of him - which my son's father
could very well dispute if he felt like it. My parents also filed for
guardianship when my son was very young so that they wouldn't need
permission from anyone to take him anywhere and they could seek medical
attention and whatnot for him if the need arose (he spends alot of time with
my parents every summer).

So, trust me, I've had to deal with this issue for over 15 years - and, in
my own experience, it was just a hell of alot easier to put "none" on the
birth certificate - knowing 15 years ago - that I would be fighting an
uphill battle the entire time!! Otherwise - at this point, my son's father
would NEVER have "allowed" me to move to the US with my son.

Hi:

Its been 28 years since I graduated law school. But I took [and passed]
a bar exam in a second state 15 years out of law school. Inasmuch as a
bar exam covers BREADTH of law without depth, I sometimes wonder that a
bar exam every 15 years might not be such a bad idea [although, going
through a bar exam ONCE is bad enough, I'm sure every lawyer will wince
at that idea, but I dirgress].

The reason I started off with the above statement is that I do have a
broad, but shallow understanding of law outside of immigration. If
nothing else, that alerts me to potential problems. [20 years ago, a
very good friend was referred to an Oncologist by his DENTIST --
remission becomes Gary well].

All I will say is that YOUR description has alarm bells going off.
Dekka's Angel noted that contacting a Canadian family law attorney
might be a good idea. I join in that with a further note that you
might also want to contact a family/estate attorney in the state you
reside her in the US.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

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Folinskyinla

11-23-2003, 12:22 PM

mrtravel

11-23-2003, 12:42 PM

Folinskyinla wrote:
All I will say is that YOUR description has alarm bells going off. Dekka's Angel noted that contacting a Canadian family law attorney might be a good idea. I join in that with a further note that you might also want to contact a family/estate attorney in the state you reside her in the US.

I am wondering about this. The CDN poster doesn't clearly indicate the
father had his rights stripped by a court, only that she put "none" on
the birth certificate. It seems like it would take more than this for
there to really be no legal father, in addition to simply putting "none"
on the birth cert.

mrtravel

11-23-2003, 12:42 PM

HunterGreen

11-23-2003, 01:12 PM

Originally posted by Folinskyinla
Can you expressions in a will [which "speaks" as of the date of your death] supercede the rights of a natural father?

You might want to look into that.

Thank you for thinking about that, Folinskyinla. I have actually looked
into this, but haven't found a conclusive answer yet. I plan on meeting
with a family lawyer over here before we start our immigration process,
just to get everything clear.

And, also before starting everything, I want to get in touch with a US
family lawyer about this as well (also with regard to the other question
I posted on this thread). Not sure how to go about finding one over
there though, but I have time to figure it out.

Before this thread I had thought I also needed to get in touch with
immigration lawyers in both countries, but I think I can at least skip
that part now.

The good part is though, that DD's bio dad has since started a new
family too, and wishes us nothing but well and happiness also.

I don't expect any problems really, I just want to be prepared so we can
breeze through. I like to be armed to the teeth... lol. And no, I don't
have OCD. ;)

Elaine :)

--
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Folinskyinla

11-23-2003, 03:13 PM

Originally posted by HunterGreen
Thank you for thinking about that, Folinskyinla. I have actually looked into this, but haven't found a conclusive answer yet. I plan on meeting with a family lawyer over here before we start our immigration process, just to get everything clear.

Hi:

Word of warning: there may NOT be a "conclusive" answer.

Among California lawyers, the most famous "rule against perpetuities"
case is Lucas v Hamm from the early 60's. A lawyer was hired to draft a
will for his client. Will drafted. Client dies. The named
beneficiaries of the will fail to inherit becuase the lawyer screwed up
the Rule Against Perpetuities.

Beneficiaries sue attorney for malpractice. His defenses are two --
beneficiaries not my client, so they have no standing AND I didn't
committ malpractice by mistake. [Not all mistakes are MALpractice --
and the rule against perpetuities is one those arcane rules that are
easy to state and fiendishly difficult to apply -- can't forget about
that fertile octegenarian, can we now? ;) ]

Well, the California Supreme Court held that lawyer COULD be sued by the
intended beneficiaries, BUT on the merits, found no malpractice -- in
fact the Supreme Court found that not only does your average lawyer have
problems with that rule, but the COURT has trouble in understanding it.

One of the more fascinating cases I've handled involved the immigration
of an adopted son. Under the law of Burma, only Buddhist "Katima"
adoptions were considered legally valid. My clients DID have a "katima"
adoption, but they were NOT buddhist. INS had a lot of trouble with the
idea of a religous adoption by non-adherents of that religion.

When asked "why did you do a Buddhist rather than a Chinese adoption",
the response was "We are not allowed to have wills and testaments."

At first, I found that answer to quite strange and both the INS officer
and I were shaking our heads. But when I researched it, it turned out
that the anwer made perfect sense! The law of adoption and paternity is
closely related and interwined with the law of sucession, wills and
estates. And under Buddhist tradition, the idea of a person "speaking"
through a will AFTER they die is anathma. If a dying person wants to
give away his stuff BEFORE he dies, fine and good. But once he is gone,
it is a matter for the living to take care of.

Sorry for the digressions, but it is an interesting area of law.

Good luck.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

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angelmaries

11-23-2003, 03:28 PM

Yes, a long time ago the "child" born out of marriage can use the
fathers last name but that was a long long time ago.......now even if
the father acknowledges paternity & sign the birth certificate theres
no way the child can use his last name (though the child will get the
same share of the fathers property as the legit child if he dies).
Another thing for other peoples info only an authenticated copy from
the record of National Statistics Office (NSO) is accepted in applying
for passport, even those to be attached in applying visas etc.

I NEVER knew that a woman who is not married to the father could not use the father's name even if the father acknowledges parternity. That is really interesting and of course, is the situation with my daughter. Also, based on other posts I have read, my wife will have certified copies of her hospital records from the time of birth of her daughter along with lots and lots of childhood pictures.

Pallyn

11-23-2003, 05:02 PM

My will was drawn up to name my daughter's father her physical guardian,
partly because my lawyer agreed that he could fight any other guardian
and win. What was allowed was naming a separate financial guardian. My
daughter has a good relationship with her dad, but his financial
maturity is still lagging. Her trust will be managed by his relative,
who is also supportive of this plan. I think social security checks
would be made out to the physical guardian, but thankfully that is not
all she would be left. Just to point out that you can at least make
sure your financial legacy is used for the child's benefit.

--
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Dad of 3

11-23-2003, 05:02 PM

Folinskyinla:

In Florida, a biological parent can not divest the other biological
parent of custodian rights through a will. What a testator can do is
express one's concerns regarding the child's welfare to try to persuade
a close relative or other concerned person to challenge the surviving
parent's custody and ability to care for the child. Pretty much, a
challenge to the surviving parent's custodial rights will have to allege
and prove some kind of detriment to the child so that it is not in the
"best interest" of the child to be with that parent as that term is
defined by statute.

However, at the same time, consider a fact pattern where a 10-12 year
old child has been residing with his mother and step father for his
entire life. The step father has in ALL WAYS been the real dad to this
child. He supports him emotionally and financially, coaches little
league, soccer, football, is president of the PTA, and much more. This
child is the step father's primary focus in life. The biological
father, on the other hand, has never been involved in his son's life.
He does not pay any support, he sees the child maybe once every year or
two and and sends no birthday or Xmas card. If that child's biological
fafther ends up litigating custody against the step father, the bio dad
will probably loose because of the harm it would do to the child to be
removed from the only "dad" he has ever known.

As for the "rule against perpetuities" (which I still dont get even
after passing two bar exams and having 12 years of practice), and how it
may figures in to the custody issues, Florida has a 90 year statute in
place of "the rule" which thankfully, I dont have occasion to deal with
in in the areas of law I practice.

Pam:

I have done the same with my will as it relates to my two sons.
Their mother, would be the guardian over their person, and I have
named another person to administer any proceeds from my estate that
are intended for them until they reach 21. As for Social Security,
I also think the children's death benefit resulting from my death
would go straight to their mother as it is intended to assist the
custodian with their day to day support (almost like replacing my
child support payments)

--
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Pallyn

11-23-2003, 05:37 PM

I have named another person to administer any proceeds from my estate that are intended for them until they reach 21. As for Social Security, I also think the children's death benefit resulting from my death would go straight to their mother as it is intended to assist the custodian with their day to day support (almost like replacing my child support payments)

Dad of 3

My arrangement makes me feel more secure for my daughter, for sure. I
lost a coworker whose children's fathers are still involved in a fight
with the maternal grandparents for custody. I would bet money that,
in one father's case, the battle would never even have started if
getting his hands on the child's trust wasn't involved. Enough for my
little plug for post-mortem protection of kids. Good luck with your
wife's process!

--
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Folinskyinla

11-23-2003, 05:39 PM

Originally posted by Dad of 3
Folinskyinla:

In Florida, a biological parent can not divest the other biological parent of custodian rights through a will. What a testator can do is express one's concerns regarding the child's welfare to try to persuade a close relative or other concerned person to challenge the surviving parent's custody and ability to care for the child. Pretty much, a challenge to the surviving parent's custodial rights will have to allege and prove some kind of detriment to the child so that it is not in the "best interest" of the child to be with that parent as that term is defined by statute.

However, at the same time, consider a fact pattern where a 10-12 year old child has been residing with his mother and step father for his entire life. The step father has in ALL WAYS been the real dad to this child. He supports him emotionally and financially, coaches little league, soccer, football, is president of the PTA, and much more. This child is the step father's primary focus in life. The biological father, on the other hand, has never been involved in his son's life. He does not pay any support, he sees the child maybe once every year or two and and sends no birthday or Xmas card. If that child's biological fafther ends up litigating custody against the step father, the bio dad will probably loose because of the harm it would do to the child to be removed from the only "dad" he has ever known.

As for the "rule against perpetuities" (which I still dont get even after passing two bar exams and having 12 years of practice), and how it may figures in to the custody issues, Florida has a 90 year statute in place of "the rule" which thankfully, I dont have occasion to deal with in in the areas of law I practice.

Pam:

I have done the same with my will as it relates to my two sons. Their mother, would be the guardian over their person, and I have named another person to administer any proceeds from my estate that are intended for them until they reach 21. As for Social Security, I also think the children's death benefit resulting from my death would go straight to their mother as it is intended to assist the custodian with their day to day support (almost like replacing my child support payments)

Hi:

We are in agreement that a will does not guarantee what will happen if
parent dies.

The last time I looked [over 20 years ago], the California "safe harbor"
against perpetuities was 80 years. Makes me wonder what might happen if
a Florida attorney drafts a will and then the person moves to California
where they reside when they die.

Thinking about this is making my head hurt -- I'll stick to immigration.

--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization

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