Custody/Resident Status Questions


#1

My wife and I are beginning Divorce/Custody/Child Support proceedings, and I have a couple of questions:

First, she is not a US citizen, her current status being a legal permanent resident. What effect does this have if any on her ability to gain primary custody of our only child (9 years old). Also, how does our divorce (when finalized) affect her citizenship status?


#2

Yes, my advice is that she speak with an immigration attorney about her immigration status. I know many people that have filed for permanent citizenship or resident status and have obtained a divorce without the divorce affecting their application and filing. You can still separate from your spouse even though she is not a citizen of the US. With respect to custody your wife may take your children back to her country if you agree to allow them to go, otherwise she will have to prove in court that taking the children to her home country is in their best interests. This can be very difficult to do, especially if it means that they will not have consistent and regular contact with their father. Thank you.


#3

Thank you. But, in the case that she plans to remain in the US permanently, are you saying that her residency status has no bearing on her ability to gain primary custody?

Also, I have a simple question regarding response to a summons/complaint. In the Summons it states that you must 1) serve a copy of your written answer to the complaint upon the plaintiff/attorney and 2) file the original of the written answer with the Clerk. My question is (which may seem obvious but just to be certain) does signing and returning an Acceptance of Service essentially accomplish what is asked of in 1) and 2) of the Summons? Meaning, 1) and 2) in the Summons can be ignored as long as you sign and return the Acceptance of Service?


#4

Right. Her legal resident status will not hinder her in gaining custody, unless you have reason to suspect or she indicates that she may be taking the children to her native country.

1 & 2 refer to serving an Answer to the Complaint. Your signing an Acceptance of Service is not the same thing as an Answer. A of S just shows that you were in fact served with the Complaint. You do not have to file an Answer if you don’t want to. However, failure to file an Answer means the court will deem you to have admitted to all of the claims she made in her Complaint. If there is anything you disagree with, you should file an Answer denying those allegations. Additonally, you should consider whether or not you need to file counterclaims within your Answer. If you need more help with this process, the Rosen Online service (rosen.com/DIY) may be a good resource for you.