Indian citizen mother and custody of us citizen daughter


Hi,

I am an Indian citizen married to my US citizen husband since 2010. I have a 2 year old baby girl who is a US citizen. There has been some friction in our marriage with my abusive husband who had threatened to take away my daughter from me and was asking me to leave the child with him and go away because I am unemployed and have been a stay at home mom taking care of my baby daughter.

I also had some post-delivery health issues and couldn't focus on career. Currently I am a Permanent Resident and am still living with my husband who is insisting that I take up US citizenship shortly.  

My worry is if my husband were to start divorce proceedings in the US and file for child custody rights, can I take my child back with me to India and file for child custody even though I take up US citizenship ? Will being a US citizen make it complicated for me to leave the country with my daughter? Will the US courts have jurisdiction over the custodial rights of my child even if I were to move back to India as a US citizen ? Would it be better to avoid taking US citizenship ?

Would appreciate any response, please help.

Thanks.
S

 
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Senior Partner

1. If he starts proceedings in US soil then the US county Court will not allow you to take US citizen child to India. 

2. Taking up US citizenship is not a pre-condition to take child to India. It is noticed that many Indian mothers have illegally taken minor child of parties without consent of natural father(s) from US soils to India on some or the other pretext and upon reaching Indian soils have waged women centric Indian laws upon natural father(s) making US based natural fathers take up herculian legal battles both in Indian Courts as well as in US Courts.

3. US Court will have jurisdiction if both parties submit before the county Court since natural father and child are US citizens r/w you are on living there on PR status.

4. If child is US citizen then US county Court can order its return to US soils. Ref. to a very famous case of Dr. V Ravi Chandran Vs. Vijayashree Voora about which I discussed here in this very forum in great details some years back, where the Indian Supreme Court has ordered the deportation of the wife and her US citizen child involved in a legal row with her above named Indian born US citizen husband (Supreme Court citation Nov. 2009)  

5. Ideal way out from your brief could be to consult local Attorney and seek 'a just' pre-trial memorandum on child visitation - custody order(s) from jurisdiction county Court under whose ward parties US citizen child resides as per US laws. 

 
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Business

Will being a US citizen make it complicated for me to leave the country with my daughter? As the baby girl is a U.S. citizen, parents' citizenship is not an issue in U.S. courts. You cannot take the girl out of U.S.A. without consent of both parents. In fact, when you apply for Indian visa for a minor U. S. citizen child,  you will require written consent of both parents and there are forms for providing such consent. This is a result of instructions provided by U.S. Department of State to all consulates/embassies. You may also be asked questions at the airport if the minor child is not accompanied by both parents.


Will the US courts have jurisdiction over the custodial rights of my child even if I were to move back to India as a US citizen ? Yes, jurisdiction over custodial rights of a minor U.S. citizen will remain with U.S. Courts but depending on other circumstances, such as citizenship of the parents, the Indian Courts may have concurrent (also have) jurisdiction if the child lands in India and is in India at the time of the custodial dispute.


U.S. Courts will have jurisdiction over custodial battle if you approach a U.S. Court even if none of the parents are U.S. citizens. In fact, non U.S. citizens routinely get divorced in U.S. and issues such as custodial rights are decided there. If both parties had fair opportunity to litigate there, Indian Courts will accept such foreign decrees as final and binding.  


U.S. laws on divorce and marriage vary across states, unlike in India. But generally speaking, the laws are much more favorable to women in USA then in India with respect to alimony and property rights. I doubt your husband will initiate divorce proceedings in USA. May be you are just paranoid that he is going to initiate divorce proceedings. If he was interested in doing so, there was no need for him to ask you to take up U.S. citizenship. Hope you are attempting to salvage your marriage given that you have a baby child.


Would it be better to avoid taking US citizenship ? Take up U.S. citizenship and apply for PIO/OCI card from India and enjoy the best of both worlds, accept purchase of agriculture properties in India and voting or standing for elections in India. U.S. citizenship is left in tact .No visa required to come to India.

 
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Business

"...except purchase of agriculture properties..." Not "accept"

 
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Thanks for the replies. I got married to my US citizen husband under the Hindu Marriage Act and our marriage was registered in India. Please refer to this article:

http://www.vakilno1.com/latest-notifications/divorce-hindu-marriage-act-married.html

which states that my husband can divorce me by using laws that apply to the Hindu Marriage Act for the Indian courts to recognize the divorce as valid in India.

I am currently in India with my baby daughter on a brief vacation and my husband wants to take me back to the US. I am unemployed and financially dependent on my husband since marriage. I have been a stay-at-home-mom taking care of my daughter due to some post-partum health issues. One of the main sources of friction in our marriage has been my being unemployed and not finding a high paying job that will satisfy my husband and bring me a fat paycheck. It is not enough if I worked part-time or some thing that pays me less.   

I have been attempting to salvage my marriage and this is what I have tried so far: 

I have tried negotiating with my husband that I will look for a job if he (a) can help with the daycare costs (which is quite expensive where I live) (b) upgrade my education so that I can find suitable employment, but it will take more me more time to find a job. I am unemployable and my previous work experience in India is not recognized in the US. My husband has good health insurance and more money to care for my daughter in the US than I do. My in-laws who live in India and are putting more pressure on me to find a job soon (they say it should be on par with that of a software engineer which I am not and cannot even dream of making).  And my husband is not very supportive with helping with my career plans or to care for my child. My husband had mentioned the D-word many times to me and my fear is that if my husband were to initiate divorce proceedings against me in the US, I am afraid I won't make enough money to meet the cost of bringing up my daughter alone in the US and fear losing my child to him if he were to use the US courts against me. Whereas I have a better support system in India to care for my child.  I am desperately searching for a job for the last two years despite my health issues but I am not feeling too confident I will find something soon, especially a paycheck good enough to please my husband. I really don't know what to expect from my husband once I go back and do not find a job. 

Since I am already in India with my child, I am rethinking my options. If I stayed back in India with my child, can my husband force me to go back with him to the US and take away my child? 

 
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Business

Custodial matter: The Bombay High Court case cited by you is one in which the High Court asserted exclusive jurisdiction when in reality it only has concurrent jurisdiction.  The U.S. court can and will also assert jurisdiction. The U.S. courts are not bound by judgements of Indian Courts and vice-versa unless there are agreements under some treaties, which is not the case here. Judicial precedents are there for acceptance of foreign judgment in family matters and they vary across High Courts in India.  Your husband could appeal to the Supreme Court if your matter is in Bombay and that Court or you relies on the judgment cited by you. Either way, the facts of your case favour you heavily in custodial matters, both in the U.S. and in India. 


Alimony: If you are planning to reside in the U.S. and your husband initiates divorce proceedings in India, you ignore the divorce proceedings in India or delay them and initiate one in the U.S. Go back to the U.S. and the U.S. Court will Order alimony if your husband initiates divorce proceedings, given that you are unemployed. So a support system will be in place, at least in terms of finance. The divorce proceedings in the U.S. will finish much earlier and the laws are much more favourable in the U.S. for alimony, property, etc.  In India laws are favorable to women only to allow women to harass men ad infinitum but not when it comes to financial matters. Hopefully, you are beyond that. If your husband intends to stay in the U.S., he will be bound by the alimony ordered by the U.S. courts and cannot waive any Indian Judgment as a defense. If he returns to India, its a whole different situation and he will not be bothered by what the Court in US has ordered. You need to analyze all "what ifs" and strategize accordingly.  


Force: No Court can force you to leave your own country unless you have entered illegally or broken any laws of your country or a foreign country and the foreign country has an extradition treaty with India. None of this applies to you. Now with regards to your child, I doubt that any Court anywhere will forcefully separate a mother from a two year old child, especially a daughter. 


Paranoia? Alternate Options? Nothing stated here by me is intended to encourage you to initiate divorce. In fact, given that you have a baby daughter, it should be the last resort for both of you and it appears, despite your long explanation, that your disagrements are simple monetary matters, regarded as ordinary wear-and-tear in marriage, certainly not warranting the extreme remedy of divorce. I am not even sure that a divorce will be granted to either one of you, in India or U.S. if the other party opposes the same because there just are not enough reasons to seek one,in your case unless you seek a mutual consent divorce. I am afraid that your concerns may be driven by paranoia. You can write reasonably well. Surely, with a Greencard already in place and a citizenship forthcoming, employment should be easy in the U.S. as well as here. If not as a software professional, at least as an administrative staff. You will be amazed as to how administrative staff in the U.S. can quickly move into management and earn a lot more, over time, then software professionals who mostly tend to stagnate in their career once they reach a certain point. There are many single mothers in USA who are in your situation. They are not suffering. You need to take a hard look at whether you want to be in their place.  For a few weeks, take the thought of separation or divorce out of your mind as if that option is just not available and behave normally with your husband as if all-is-well and see what happens. Then come back and ask for advice.  You may be surprised that you may not need any. 

 
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Thank you for the detailed response.

I have no intention of initiating a divorce against my husband nor harassing him by using the Indian laws: I only want to know where I stand legally if he starts something against me and be well prepared.

My husband has no property/ real estate in the US except for some financial assets and savings (He has not disclosed them to me and says he has willed it all away to his siblings). He does have some pre-marital savings in his name and has made it clear to me that since we live in equitable distribution state in the US I cannot get anything unless I make a significant contribution to it such as through my own earnings or savings. He is not transparent about money. Once I am financially independent I do not want his money, however I may want my daughter to get help from her father and support from him.

 

I know it is not easy being a single mother and I do not want to be one and certainly do not want to deny my daughter her father. 

 
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Business

It appears that you have clear thoughts and principles about your matrimonial relationship, expectations and plans for what-ifs. If your actions follow your thoughts, you should find yourself in a mentally sane and financially safe position at all times. Do get your U.S. citizenship, followed by a PIO/OCI card and focus on boosting your earning abilities. You write well and thats a great starting point. Good Luck!  

 
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