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Ex husband fled to us with my daughter

Page no : 2

abc (manager)     19 June 2012

Hi Sunil, Unfortunately their is no non-judicial way to catch hold of my ex husband.. And that is the reason why it has reached to such a state. He just does not care for his own daughter's emotional needs and need to be with her Mother.. His ego is far more bigger than his dayghter's needs.. Even when my daughter cries for her mother, she is not allowed to meet me.
Originally posted by :Sunil Sharma
"
abc,

I have a feeling that your ex-husband must have taken the daughter much before the interim court order. Before the court order, he had the custody of the daughter. You may have filed the contempt case, but in due time he will cite all these reasons. 

Anyway, going through all these circuitous ways will take lot of time. Are there possibilities to approach your ex-husband in any non-judicial, non threatening ways ---- after all, it is the question of your and his daughter!!! 
"

MRRpersonality (Knows very little about Indian laws)     19 June 2012

@abc:  your custody orders have no bearing on US soil nor do the contempt of court orders.  Those orders can only get served via consulates or embassies.  as per the extradition treaty between india and US, the crime should be punishable for atleast 1 year in both the countries and the crime should be recognized in both the countries.  This has to happen through diplomatic channels.

 

However your best chance would be to complain to US consulate or Indian Consulate to reach out to your ex-husband and your daughter withyour fears and apprehensions about emotional abuse meted out to your child because the child wanted to visit you and talk to you.  Keep your court orders, official child statements etc as evidence and provide them copies.  You have to claim that your daughter has been denied access to you, illegally and you have to claim there may be other issues.   Instead of projecting this as a child custody issue, you have rephrase it as a child abuse or human rights issue. 

 

The key is your daughter.  If your daughter does not go against your ex-husband, nothing can be done.  But if she claims she has been denied access to you (either via email or telephone of any other methods), her schooling or
her medical needs or some of the basic needs forcibly it will amount to child abuse or domestic violence according to US laws.  But it is also easy for him to brain wash her, so if your daughter does not say a word then nothing can be done.  All depends on how much the consulates/embassies will be willing to help you as well as India is not one of the Hague convention signee.

abc (manager)     19 June 2012

Hi, Thanks for your reply. I agree that my custody orders here have no bearings in US soil. And that is why I was planning to file a fresh case in US for committing emotional abuse against my child in US soil. I want to hire a lawyer in Arizona, where my husband is and file a case against him. My daughter's statement in family court in India will be part of case facts. So I wanted to know that can I file a case in US by sitting in India? I know it will cost me a lot, but then my daughter is involved and right now I just dont see any way out. Does the fact that my daughter is a US citizen helps me in any way, in either getting addtional support from US consulates or filing a case against my husband in US? Please advice.
Originally posted by :MRRpersonality
"
@abc:  your custody orders have no bearing on US soil nor do the contempt of court orders.  Those orders can only get served via consulates or embassies.  as per the extradition treaty between india and US, the crime should be punishable for atleast 1 year in both the countries and the crime should be recognized in both the countries.  This has to happen through diplomatic channels.

 

However your best chance would be to complain to US consulate or Indian Consulate to reach out to your ex-husband and your daughter withyour fears and apprehensions about emotional abuse meted out to your child because the child wanted to visit you and talk to you.  Keep your court orders, official child statements etc as evidence and provide them copies.  You have to claim that your daughter has been denied access to you, illegally and you have to claim there may be other issues.   Instead of projecting this as a child custody issue, you have rephrase it as a child abuse or human rights issue. 

 

The key is your daughter.  If your daughter does not go against your ex-husband, nothing can be done.  But if she claims she has been denied access to you (either via email or telephone of any other methods), her schooling or
her medical needs or some of the basic needs forcibly it will amount to child abuse or domestic violence according to US laws.  But it is also easy for him to brain wash her, so if your daughter does not say a word then nothing can be done.  All depends on how much the consulates/embassies will be willing to help you as well as India is not one of the Hague convention signee.
"

abc (manager)     19 June 2012

Hi, Tajobsindia,

Thanks for your detailed reply.

You mentioned that "attorney abroad list is available in US consulate".  I  am planning to go to US comsulate to get this list. Is this list of local attorney help me file and fight my case in US? I am India.. Can they help me while I am in India?

See I  know that my daughter wants to see me. No child in the world would not want to see her Mother.

I am not asking for the custody of my child, I am only intersested in access to her and her access to me. She is growing up  now and needs her mother more than ever. I  only want that she should be allowed to speak to me on phone and visit me once/twice a year.

Even though my daughter has gone to US wishfully, but she is being deprived of her mother forcefully..

I  have her statements saying that she wnats to see and speak to her Mother.

So will these attorneys help me file a case in US soil?

Thanks

 

 

Originally posted by :Tajobsindia

"
@ Author,


Here are in laymen’s way US laws on child abduction explained to you. Keep trying now!


An “Amber Alert” would NOT be issued in this case, unless the child was deemed to be in danger. It is NOT considered parental abduction in this case because a parent can not kidnap their own child, again unless there is a custody arrangement in place (then if they violate that arrangement, it IS considered parental abduction) but same should be reciprocal arrangement recognized by both countries. For your bad luck understanding USA does not recognize Indian custody laws of their CITIZENS.


Illustration first on how I arrived at colly. reasoning below:


Say on 1st. June he with child left for USA while some custody case was pending in India. After his leaving the order on interim visitation was announced by the Court say on 10th. June. You reached at doorstep as per Memo of Parties in that suit say by 11th. June to find locked address. In such illustration it is not abduction nor kidnapping nor even contempt of Court for a simple reason no restraining order not to leave Jurisdiction of Court as status quo was ever tried first of all by your side before even filling for interim custody application!!!
 

Colly reasoning:



Both of you were granted by a court decree separation. During that suit the physical custody went to natural father who as per Indian law is natural guardian of the child. You are just a mother to the child. A 8 years old child as per US law is treated as reasoning age in child abduction suits unlike in India the age is 11 years other than few septuagenarian lordships emotional chamber announcements in stray cases of 5 years old child to be reasoning age for which you may run fast to SC. His employer may kick him out reading emotional letter of Indian ex wife but then USA is land of opportunities and a natural father with a minor child would not have taken risks without weighing his capacity to sustain there before taking the child. Both countries donot have extradition treaties for USA citizen which your child specially enjoins NOW J India does not recognize Hague Abduction Convention (many Indian wives from USA have abducted child back to India so it is natural why Indian legislature would be keep to give ascent to Hague convention on IKPA which US recognizes to come out with INTERNATIONAL CHILD ABDUCTION REMEDIES ACT (ICARA) in 2008). Ours is a weak State when it comes to such grey matters and sufferers are both genders of Indian origin.



Your Indian lawyer should know first that The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been enacted only in 48 states (in USA) and has been just introduced in others. Generally, this statute contains both jurisdiction and enforcement provisions that require a state to enforce a custody or visitation order that was issued by the child’s habitual residence. Ministry in Delhi is great in red-tap so there goes high sales on Duranto train tickets to come every weekdays to talk to some babus in Central Ministry to expedite the case whatever rosy promised by yoru lawyer back home J.


US only recognizes INCOMING HAGUE CASES and since India is non signatory so there goes such futile efforts and indirectly burn money on high flying brother advocates assurances that ammaigaru I will get back your child ! That may be the reason another replier above said ‘keep banging”? Mind it India is heaven for INCOMING child abduction and no act of even GOD can extradite USA citizen child brought to India by an Indian Hon. mother - except one case that of my old friend Dr. V. Ravi Chandran which offcourse was faught one time by ld. Sh. Prashant Bhushan. 


Now here is the concluding shocker of USA Court system where some future case you may plan to file and on what parameters the local USA Court can deny the return of your child based on 10 days vacation alleged contempt (for USA Court it is not contempt believe me) -



The return of your child can be denied by a U.S. court under limited circumstances in accordance with the Hague Convention. The return can be denied, for example, if the other parent (that is natural father) is able to prove to the court one of these exceptions provided for in the Hague Convention:



- If there is a “grave risk” that the child’s return “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” (Article 13b);
Take: Your husband has smart lines to explain this para sittiing in comfortable adopted home. All that he has to do is pay honestly hourly rates to local attorney, they will do his work.




- If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of” the child’s views (Article 13b);
Take: If your child did not raise any alarm at port of departure (i.e. India) and upon embarkation port in USA upon arrival then all said done she is comfortable in her dads company and will sing non-objection tune believe us the moment she has been to Disney Land (by now her father must have taken her on such visit for sure) this we have seen practically.




- If over one year has passed since the date of the wrongful removal or retention (Article 12) and it is demonstrated that the child is settled in their new environment; Take: This is about to happen if babus in Delhi get busy in coming presidential election betting and ignore for long your file.



or

 


If the return of the child would be in violation of the United States’ “protection of human rights and fundamental freedoms” (Article 20).
Take: Ask your local Advocate what is Indian equivalent as per our Constitution to American Art. 20 J


But apart from above depressive reading here is a good news; In order to pursue the return of your child from USA, you will likely need to retain an attorney in the country to which your child was taken.  This attorney abroad list is kept in some drawer at US Consulate in nearest metropolis in India whom you may approach and can help you navigate.



Concluding remark is that I differ to non legal read with non medical take of @ MRRPersonality and say he should read posts instead of giving such bald takes without any application of mind.  


That is why number of times I placed here articles for prudent professionals to pressurize India sign Hague Convention but then who cares is general attitude and people take note when they get HIT and not otherwise is our national pastime………
"

Tajobsindia (Senior Partner )     19 June 2012

Lady I repeat in your easy understanding in English language once again;

 

 

India is not a signatory of the Hague Abduction Convention which US laws recognises and India does not consider international child abduction a crime. Indian courts rarely recognize U.S. custody orders preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India. [This is not the case in hand]. In the rare scenario that a case is resolved, it is usually due to an agreement between the parents rather than the result of court orders or arrest warrants.

 

 

Cultural factors often impact child custody decisions in India. For example, Indian courts rarely grant custody to a parent residing outside of India, even if both the child and abducting parent are American citizens. Additionally the courts tend to favor mothers when determining custody. [This is your loopy after though process after your separation decree].

 

 

India does not require the signature of both parents for an Indian passport to be issued to children younger than 18 years. India requires exit permits for children. [Showing custody retained order during your separation he is within his rights to take child out to USA]

 

 

Because India does not recognize dual nationality, as soon as a child is documented as a U.S. citizen, that child has no claim to Indian citizenship unless he or she renounces the U.S. citizenship upon reaching the age of eighteen. [Now it is too late by you even to cancel your child assumed US citizenship status which we are sure her father must have put papers before concerned US Authorities for her citizenship]

 

 

A parent can prevent issuance of an Indian passport to their child by lodging a complaint with the passport office. [Not done in your case by you so now too late]

 

 

India does not allow a child to be entered on a parent's passport. [I doubt he will like to come back so soon forget some HC order of his return]

 

 

Also, a child cannot travel through the region on a national ID card without processing through customs (i.e. travel through the EU).

 

 

The consent of a non-traveling parent (regardless if father or mother) is not required for the child to depart India. Likewise, the father does not have to approve the children's departure from India. [This is what you are challenging and for the same good luck]

 

 

There is no formal process for registering a foreign custody order with the courts, and U.S. custody orders are not automatically enforced in India. Do anyone of you think Indian courts order US court will entertain when India is not signatory to Hague Abduction Convention and this to be "incoming" case ? Your propsective situation is that of "incoming case" for US authorities to unravel.

 

 

Custody decisions are made "in the best interests of the child," using as the primary consideration the welfare of the child: the ability to support the child financially, any history of abuse, etc. [Was there any history of abuse you can show to Jury in a US court of Law? Had it been so the first que. US County Court will ask your attorney is why Indian Court granted ciustody of chidl to father and there thrown out in 20 seconds your representation from County Court]

 

 

India has laws authorizing courts to award custody in the case of divorce, but the laws do not contain substantive guidance for custody determinations - case law does exist (ref: Sharma vs. Sharma (2000) 3 SCC 14 or Sumedha Nagpal vs. State of Delhi (2000) 9 SCC 745 or its opposite ref.: V. Ravi Chandran (Dr.) vs. Union of India (2010) 1 SCC 174.

 

 

Parental child abduction is not a criminal offense in India whereas it is so in USA and case of this nature the signatory oto Hague Abductions Concention is missing link un-repairable is my view..

 


Although
India will extradite its own citizens subject to an Interpol arrest notice if the crime is covered by the U.S. Extradition Treaty with India this is not an available remedy in parental child abduction cases because India does not recognize it as a crime. [So good luck there]

 

 

Interpol India indicates that it will search for a missing child based on a "Yellow notice". I already sparked earlier about "Amber Notice" see what you can do about disco colours of NOTICE now! [So once again good luck there]

 

 

At the end let me remind Indian mothers about there three weapons in custody / visitation case that are commonly used in almost all custody / visitation cases;

 


One -
He does not have a female company at home to take care of my child.

 

Two - His character is not becoming of natural guardian.

 

Three - He is committing Emotional + Physical +/- Sexual assault to my child.

 

 

Among the above three most common allegation stage which stage your current ridding on right now we very well understand. [Hence finally good luck to you.]

 

 

Also do care to reply the date he left and the date visitation order announced for making this query more clearer for writers to suggest clear remedies available to an Indian mother instead of bankign solely on Contempt of Court as if it is Rx off the shelf in your facts which I have serious reservations about !

 

 

Allow me to quote your day dreams now "See I know that my daughter wants to see me. No child in the world would not want to see her Mother."

 

 

Take: Respected Indian mother where were your emotions then at the time of your separation from your ex-husband to have allowed custody of your female daughter to him now that you are visualizing above thy name point three above ? Did not a mother knew that a girl will reach puberty to seek company of female when your separation arrangments was drafting? Only in India, Indian mothers have clouded judgment of Judiciary on this point and no where in the world jurisprudence I have ever come across that a mother uses all three pleas. BTW would you like to read several Indian custody orders including that from our Hon'ble Apex Court where either gender minor child has BLUNTLY refused seeing natural mother leave aside for a moment children of the world!

 

 

You have to search for an Attorney in Arizona State particularly in the County where he along with child are living as Arizona State is bigger than MP State. US Consulate may help in giving leads to you into right direction. The list that I mentioned earlier is for “outgoing cases” [I admit I made a mistake in quoting about the list without signifying of it to be outgoing or incoming list thus you asked me this question for clarity which I just made].

 


Also note the moment case is filed in US soils all sorts of counseling / physical examination / physiatrist examination by private agencies [mind it these services are contracted to private hand including prison housekeeping there in USA unlike in India where Govt. squeezes our tax payers money and provide litigants crap service] may happen on your own girl child minus a mother there to accompany minor child from pillar to posts so bear that also in mind before reaching to David Goldman’s most famous international case of inter-parent child abduction.


The most humane solution to your query is to have communication channels with your ex-husband re-opened on humble politeness grounds and enter into an agreement between the parents rather than the press for result of court orders or subjecting your own child to psychiatric / social examination in a foreign land when her own mother is absent.

 

 

[Kindly don’t re-quote my large replies while asking a query if you have to ask anything to me just pick mine line as quote and I may reply keeping larger public satisfaction of my replies over singular queriest satisfaction]

MRRpersonality (Knows very little about Indian laws)     19 June 2012

You can file mostly from India.  https://www.bakerlaw-az.com is a reputed firm operating in Arizona and you can fille in online with your questions and they will get back to you.  Alternatively call them on 1-602-889-6901.   Attorney fees are usually way too high in US.   It may be good idea to good a list of attorneys from the consulate as well.  

 

Most cases in US can be filed sitting abroad as long as you have a representative, including complex bankruptcy petitions as well. 

 

Hats off to you for the fighting spirit for the just cause.  If you know that he is in US, do you also have other details about him, like his phone number and address etc ? 

abc (manager)     19 June 2012

Hi,

Thanks for the compliment.

I know that the lawyers fees are too high in US.

I know  the address  of My ex- husband's office where he works.., I know tha phone number of the office and I also know the employer.

I am planning to approach his employer telling him about my ex husband's contempt of court in India and his emoitional abuse of the child. But the employer may choose to not do anything.

I am really not filing for the custody of the child.. I am only looking for her happiness and I know that my daughter is not happy without her mother in her life..

I know that their are some state appointed lawyers in US which fight for your case free of cost and their is usually a jury that decides the outcome.  Would anyone have any idea about the state lawyers?

Thanks

 

 

 

Originally posted by :MRRpersonality

"
You can file mostly from India.  https://www.bakerlaw-az.com is a reputed firm operating in Arizona and you can fille in online with your questions and they will get back to you.  Alternatively call them on 1-602-889-6901.   Attorney fees are usually way too high in US.   It may be good idea to good a list of attorneys from the consulate as well.  

 

Most cases in US can be filed sitting abroad as long as you have a representative, including complex bankruptcy petitions as well. 

 

Hats off to you for the fighting spirit for the just cause.  If you know that he is in US, do you also have other details about him, like his phone number and address etc ? 
"

abc (manager)     19 June 2012

Also I  would like to know that what I do so that in case he ever comes back to India, he is prevented from going to US again.

I think I can get his passport impounded..

Can the passport be impounded be impounded if I  show them the contempt of court order?

Also can the court issue a search warrent  if the contempt of court order is passed?

 

what else can I do to prevent his going back to US?

Please advice on this?

 

N.K.Assumi (Advocate)     19 June 2012

File a writ of Habeas Corpus petition in the High Court against your immigrant husband in USA, and let the High Copurt Judge contact his counterpart Judge in USA. Recently there was INTERNATIONAL JUDICIAL CONFERENCE ON CROSS‐BORDER FAMILY RELOCATION, IN  WASHINGTON, D.C., UNITED STATES OF AMERICA From  23‐25 MARCH 2010. Provisions have been provided for co-operation in such case of International Child abduction.

MRRpersonality (Knows very little about Indian laws)     19 June 2012

Does he hold Indian passport of US passport ? If he holds US passport, you can not get his passport impounded based on the existing offenses you mentioned.  The grounds for impounding his passport would be same as extradition.  If he holds Indian passport, and if your court orders are in your favor (contempt), then the court can order cancelling his passport and it would be illegal for him to stay in US without a legal passport.  

MRRpersonality (Knows very little about Indian laws)     19 June 2012

Try the phone lines listed on https://www.law.arizona.edu/library/research/guides/selfhelp/publicselfhelp2.cfm?page=research for free or voluntary legal services in Arizona.  You will be lucky if you can be eligible for any of the free legal services.

abc (manager)     19 June 2012

Hi Thanks for your reply.

My ex husband holds an Indian passport.

I am currently filing the contempt of court petition in High Court.  what is the process of getting the contempt of court order? Will the court order summons? will the summons be sent to his India address or I will have to provide his US address also to send the summons?

But to send the summons in US,  I will have to go through US consulate which will be very time consuming.. and how do I go about doing it..

Or I can continue to send the summons in India address (where he used to stay before he left for US and where the previous summons were served, his family still lives there)..

then after the summons coming back twice, we will have to request the High court to pass the order of contenmpt of court right?? How much time will it take to get the contempt of court order in general?

Once I have the contempt of court order, then can I get his passport impounded?

He is working on H1 visa in US.

Thanks

Tajobsindia (Senior Partner )     19 June 2012

What a far reach infinite loop you are asking remedies of now!


Lady you got “SEPERATED” from him first and now you want him to remain in
India forever! So what for separation Order taken and or what was it all about then?  Who are your grandeurs advisors circle members who are not telling first on which date he left India and on which date the visitation order was announced first of all as repeatedly asked?

 

 

Tell us how come according to you some court order on visitation becomes now contempt of court and has any announcement given by any competent court that his leaving without conceding to visitation is contempt of a court Order?

 

 

Plain reading your query says so but without application of mind on knowledge of the order on visitation by him + proving by your side that he was in position to fulfill that order + willful disobedience of that order etc. are prime facie ingredients and your side needs to prove two out of three ingredients to get some award of relief that Contempt of court happened it does not make any sense to call now that not giving visitation to you automatically becomes Contempt of Court order right now!

 

 

First get that specific Order on Contempt of Court which was alleged to have been committed by him and come back here on passport impounding.


Why you now need a
search warrant? It shows you are not sure where he is then and just fishing because he made you really angry (for something)
J



Complete the ground work here in India first instead of falling into more legal loops and burning monies and making one of my brother richer on legal fees.

 


However here are list of things you can do right NOW;

1.                 File S. 27 HMA in family court and ask for stridhan return which is a civil remedy and a standalone civil option to tighten his belt once he comes and can also be used in status conditions of a “separation” Order under civil family laws.
Addendum take: SC Law is there for it. This will take yours minimum 2-3 years to reach finality. In this case you have option to seek remedy for surrender of his passport too stating CPC (attachment of properties and assets read with fear of O/P going abroad during the course of proceedings).


2.         File S. 125 CrPC
for maint. for yourself and towards your legal expenses.
Addendum take: Your STATUS has not changed plus he is cash rich NRI so what better utilization of his green bucks then to ask a drop via court. This will take his minimum 3 - 4 years to reach finality. In this case you have option to seek remedy for surrender of his passport stating societal remedial nature of case (attachment of properties and assets read with fear of O/P going abroad during the course of proceedings).  


3.         File DV act complaint adding your daughter as petitioner 2 (on behalf of minor filed as you are her natural mother) annexing visitation order and stating IT to be “continuation of offence’ as your STATUS (marital status has not changed remember you both are just “separated’ and not divorced by a court decree.
Addendum take:
Madras HC Judgment is there for it. This will take his minimum 3- 4 years to reach finality.
In this case you have option to seek remedy for surrender of his passport stating apprehension (fear of O/P going abroad during the course of proceedings without fulfilling about to announce protection orders).
.

4.         File S. 498a read with s. 406 further R/w s. 3 & 4 of DP Act
to further tighten his belly. Remember your STATUS in marriage has still not changed hence “continuation of offence” there within meaning of IPC is still golden chance to make him never return back. In this case you have option to seek remedy for surrender of his passport praying as one the bail conditions.
Addendum take: Golden rule of defense says launch offensives attacks in War of Marital Roses. This will take his minimum 4 - 5 years to reach finality.

 

 


Now add number of respective years mentioned in each of the above paras spent to keep him grounded in India and tally it with current age of your daughter which is 10 years
= Your main purpose gets finally to see child forever till her 18 years gets solved easily why in a hanky panky way ticker US International Laws for such simple homemade remedies available to our ladies?


Addendum parting gyan: A Plain vanilla Passport impounding (actually it is called surrender) case never falls under civil domain some criminal intent by way of a complaint has to be there from a lady’ side unlike in one of your reply posts you say “I want to use civil remedies” J


Think aloud now if you
don’t wish to disclose to readers the date of order and date of his leaving India and act accordingly now that you have been given all available remedies on a brass plate
J

abc (manager)     19 June 2012

Hi,

I really dont know when my ex husband left for US..

The order date was 4rth May 2012.

The order was to have the interim custody of my child for 10 days from 21st May to 31st May 2012.

abc (manager)     19 June 2012

Hi,

I am already legally separated from my husband. He is my ex husband.. we are already divorced..

Thanks


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