You cannot get joint custody
2) you have agreed to give wife sole custody of child
3) however if wife is refusing to permit you to have video calls with your son take out contempt of court proceedings in USA against her
Child custody of US citizen residing in india
Please bear with me..I need advice. My wife and I got divorced a couple of months ago in the USA. We got married in India about 5 years ago. I am in the US on H1B. She has serious mental health issues. She threatened to commit suicide when I didn't sign the divorce. She simply gave me one document - the last page that says I agree to everything in the divorce without providing the remaining divorce documents and asked me to sign on it. She threatened to jump from our 3rd-floor apartment balcony when I tried to convince her. She was suicidal. I signed the paper, without knowing what she filled in the documents. She didn't even provide a copy of the divorce documents before or after I signed. I asked her to put joint custody of our 2-year-old son before she submitted them. Though she agreed to joint custody of our son verbally she specified sole custody in the documents that she submitted to the court. The reason she gave is the official didn't accept any updates to the documents when she went to submit them in person. I didn't say a word in front of the judge either because of her suicidal tendency. She and my son moved to India a couple of months ago. My son is a US citizen with OCI. The official divorce agreement says that I can see my son via video calls based on our mutual agreement and I get to take my son to our home for up to 30 days when I visit India. Now my wife is completely avoiding me. I haven't seen him in more than a month now. She is doing everything she can to create a rift between me and my son. She blocked my number and I don't even know the residential address she recently moved to. She is not responding to my emails either. I have absolutely no way of contacting my son now. She is taking advantage of the situation and location. She is now denying that she agreed to joint custody. I am not sure what to do. What legal action can I take to get access to my son and possibly joint custody? Should I initiate the action in US or India? I have messages about her suicidal threats that I shared with her sister before the divorce is finalized. Her whole family is aware of her suicidal threats. Please advise.
Asked 1 year ago in Family Law
Religion: Hindu
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
12 Answers
Dear Querist
As the child is in India, you have to file child custody case in Indian family court of area where the child is residing and claim custody of child along with visitation rights and no right of the child be curtailed due to agreement between both of you.
Feel free to call
You can initiate in both the countries it’s your discretion
You have to somehow find out her address, you cannot simply say that you do not have her latest Indian address
You have to file an execution petition before the Indian court with an affidavit stating that she is not allowing you to talk to your son and that she blocked you on all social media in order to avoid you from contacting her son and that she has disobeyed the court order.
If her latest address is not known you can conveniently give her parents address and also summon her parents to court to depose before court her address and other particulars.
She cannot hold the US citizen child just like that especially without allowing access to the father of the child.
In the meantime you can file a petition before US court seeking to cancel the order of granting her child custody owing to her disobedient of the court order.
You should have informed the court in US that due to suicidal tendency and in fear of any such calamity you had to unwillingly sign the divorce papers including the child custody papers.
You can get the orders cancelled and then file a child custody case in India.
You can discuss with an advocate at USA and proceed as suggested
Thank you for your advice. The sole reason I signed the divorce is she literally ran out to the balcony to jump off of our apartment. She threatened to commit suicide a number of times during 5 years of marriage, locking herself a number of times in the bathroom and threatening to harm herself. Their family is aware of her suicidal threats. They requested I sign the divorce petition so that she could back to India safely. I was literally blackmailed to sign on a single piece of paper without knowing what I am agreeing to, similar to signing on a blank cheque forcefully. I cared for her mental health. Now she thinks that I cannot do anything since I am in the US and I cannot take any action since I don't have her address. Finding her address is not a problem. She blocked all my family on all their cell phones. I am worried about my son's safety.
Asked 1 year ago
Dear client,
I'm sorry to hear about your situation. As a language model, I can provide you with some general guidance, but please note that you should consult with a qualified attorney for legal advice specific to your case.
Since your wife and child are currently residing in India, it may be more appropriate to initiate legal action in India to seek custody or visitation rights. However, since your son is a US citizen, you may also be able to seek assistance from the US government to enforce your custody or visitation rights.
If you have a court order specifying visitation rights, you may be able to seek enforcement of that order in India through the Indian courts. You would need to consult with a qualified attorney in India to understand the specific procedures and requirements for seeking enforcement.
Alternatively, you may be able to seek assistance from the US government through the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that provides a framework for the return of children who have been wrongfully removed from their country of habitual residence. However, in order to seek relief under the Hague Convention, you would need to show that your child was wrongfully removed from the US.
In any case, it would be important to gather evidence to support your case, such as documentation of your wife's agreement to joint custody and evidence of her mental health issues and suicidal threats.
Again, I strongly recommend consulting with a qualified attorney who is experienced in international child custody cases to discuss your options and develop a strategy for pursuing your rights.
Take out contempt of court proceedings if wife is refusing to permit you to meet your son
Nothing prevented you from expressing your views and anguish before the US court during the divorce hearing.
The court asked you that whether you agree for the child custody at least then you could have opened your mouth instead of remaining silent
She cannot behave weird before court especially in this circumstances, because she was aware that her behavior would become fatal to her own case.
Now you don't have any chance once the divorce decree has become final and the child custody becomes part of the divorce decree.
However you exercise your rights for child visitation by filing a petition before the concerned court o the basis of the decree in yor possession in this regard.
You can give a complaint to the police within the last known address and state that she kidnapped the child from USA hence to retrieve your child, if the police is not cooperating then you can file a haebus corpus petition before high court where you can narrate the entire events and get her dragged to court through police after which you can seek remedy for this.
Thanks for the realistic feedback on my predicament. I was in a state of shock by her threats. In the hindsight, I could have said something to the judge, but I was convinced she would harm herself. She literally said I would have to carry her dead body to India if I sabotaged the divorce. My only goal was to take her home, to India, safely. In the worst case, what are the minimum rights I get as a father in this case? I haven't seen my son in almost a month now. I plan on meeting an attorney here in the US next week. I plan on initiating action in India too in a few weeks.
Asked 1 year ago
Best of luck’
You would get visitation rights for your child
you would be entitled to video calls with your son
You can take action to cancel the orders granting child custody to her for the reasons that she has blocked you and denied you the rights for visitation.
Since she has not obeyed the court order, she is not entitled to any relief therein.
You can even file a contempt of court petition before US court if there is any such provision prevailing at that end.
Dear client,
As a father, you have the right to seek custody or visitation rights with your child. The court will consider the best interests of the child when making decisions about custody and visitation. It is important to consult with an attorney who specializes in family law in the state where the divorce proceedings are taking place to understand your legal rights and options.
In India, as a father, you have a legal right to visitation with your child. The laws governing child custody and visitation in India are complex, and it is recommended that you seek the advice of an experienced family law attorney in India to understand your legal options.
It is important to remember that the most important consideration in any custody or visitation dispute is the best interests of the child. The court will consider a variety of factors, including the child's relationship with each parent, the ability of each parent to provide for the child's physical and emotional needs, and any other relevant factors when making a decision.
You should also consider working with a mental health professional to develop a parenting plan that is in the best interests of your child. A parenting plan can provide a framework for co-parenting and help to ensure that both parents are able to maintain a positive and healthy relationship with their child.
Yes file suit for custody
