For obtaining visa for your sons you would need court orders
you are only granted divorce but not child custody
authorities would insist on Ex husband consent in absence of court orders
Child custody required to move child out of india after exparte divorce
Hello, I have a question on Child custody. I got married in 2007, separated in 2013 and got divorced in 2016,I have 2 sons aged 12 years and 8 years from wedlock. It was an EXPARTE divorce as my ex never turned up to any hearing after first few family counselling sessions conducted by/in court. Now I am in USA on H1 since 2016, and since we got separated in 2013 kids are with my parents in India. I plan on to move my sons now to USA on H4, do I need to apply for custody even though the kids are with my family past 8 years ? what are the probable issue i will be facing at Indian Immigration ? I don't even know where my Ex is living since past 8 years. Divorce document is good enough for H4 visa, unless kids are physically present with me.
Asked 4 years ago in Family Law
Religion: Hindu
Ask a question and receive multiple answers in one hour.
Lawyers are available now to answer your questions.
9 Answers
1. When there is no dispute of child custody then no petition is required to be filed for custody.
2. However, Indian Passport authorities will not issue the passport of the child without the consent of both biological parents. The other parent's signature will be demanded, which you can overcome by filing a Writ Petition in the High Court.
If the kids ate in your custody post divorce that means that either your spouse wasn't interested in keeping the children or the issue wasn't raised.
In either case you have the custody and hence there is no need to apply for custody unless tge authorities raise a specific query regarding divorce and custody papers.
The papers the USCIS expects from divorcees wrt custody of children to be taken to US is a relevant issue.
You may first understand the underlying law in this regard:
1.The marriage between you and your spouse was dissolved by a decree of divorce by a court of law hence the divorce is between the married spouses only.
2. The divorce will not put a stop to the relationship between the biological father and his children, he is still entitled to his rights over the children as its biological father equal to the rights of the biological mother.
3. The child custody even if the court grants you the sole custody of your children, you cannot take your children to aboard without the permission or the consent of the biological father of the children. The immigration authorities will not allow the children to travel abroad to settle in that country without the permission or consent or NOC of their father.
4. If your ex-spouse is filing an application restraining you from taking the children abroad without his consent, then the court may pass an order restraining you from doing this act.
Alternately you can file a child custody case, get an exparte order once again after following the due procedures and convince the immigration authorities that you are taking the children abroad only for education purposes, and that they will return to India after completion of their studies, if the authorities are convinced about this especially based on the court's order for sole custody to you, you may have a chance to take them with you.
In divorce order whether it's mentioned that kids will remain with or in your custody. And divorce took place in India or USA.
Dear sir/ma'am,
You can consider it under the Guardian and Wards Act, 1890, there is a statute that governs guardianship and custody of children. Furthermore, because parents are considered the natural custodians of their children in India, there is no prohibition on a parent removing the child from the jurisdiction of another parent.
But, in some cases, such as when adjudicating custody of the child is pending in court, or there is a restraining order issued by the court, or removing the child from jurisdiction is objected to by another parent, it became necessary for a parent to seek the court's permission for relocation or removing the child from jurisdiction, and even after the relocation occurred, it would be amicable.
Thank you,
Need not file custody case as they are with you and no travel curb can be imposed without Court Order.
Regards
G.Rajaganapathy
High Court of Madras
- Yes, you have to file a petition for getting the custody of the kids legally , otherwise it can be claimed by your ex in future as he also having right to custody and visitation as well.
- If your ex is untraced , then you can use his last known address for filing the petition , and in his absence you can get order in your behalf.
- In the absence of a court direction/order , there may be problem in visa .
1. For getting passport and/or Visa for travelling abroad, your sons will require NOC from their father.
2. It will be prudent on your part to apply for and avail custody of your children and leave of the Court for taking them abroad for their welfare.
3. Since there was no mention of custody of your child with you in your ex-parte divorce decree, you are required to avail the permanent custody order from the Court now.
