Child custody after divorce

Question

If an illegal immigrant has a kid with a person who has dual citizenship. They want to divorce but the dual citizenship person wants to move to her home country with the kid with out consent of the illegal immigrant. Can they do that with out the consent of the illegal immigrant?

Answer 1

ontario

The relocation may ultimately happen without consent, but the parent wanting to move out of the country with the child must provide notice, and the parent that would stay behind has an opportunity to object and have a court decide the issue.

Ontario's Children's Law Reform Act requires that when one parent intends to change the residence of the child, in a way that will have a significant impact on the child's relationship with the other parent, the relocating parent is required to notify the non-relocating parent.

The non-relocating parent may object to the relocation and can apply to the court to adjudicate the relocation of the child.

In determining whether to authorize the relocation, the court must take into account the best interests of the child, considering all factors, including:

• the child's needs;
• the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• the history of care of the child;
• the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• any plans for the child’s care;
• the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
• any family violence and its impact; and
• any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

as well as:

• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
• whether the person who intends to relocate the child has complied with any applicable notice requirement;
• the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
• whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

Answer 2

The answer in the U.S. would depend upon the rulings established by the divorce court. Other countries have their own rules. The primary consideration for the judge in making that determination is the best interests of the child in all U.S. jurisdictions and many non-U.S. jurisdictions. Often a child custody decree will specify where the child must reside without further court order in the case of an international couple.

There are international treaties that determine which country has jurisdiction over a child custody case, although not all countries are members of those treaties. So, in a particularly case, it should be possible to determine which country's law (and which U.S. state's law in the U.S.) applies.

The citizenship and immigration status of the parents are only considerations to the extent that they limit what is likely to be possible and viable, within the range of what is in the best interests of the child. The child's citizenship and immigration status also matters, of course, because that influences where a child can live lawfully. In the scenario presented, it is theoretically possible for the child to have as many as four distinct citizenships.