Canadian mother married to US work visa holder; custody Q

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Latest post Tue, Mar 28 2017 11:08 AM by CJ. 4 replies.
  • Mon, Mar 27 2017 7:15 PM

    Canadian mother married to US work visa holder; custody Q

    Hello everyone. I'm a Canadian citizen who is in the US on a TN work visa. I am married to an Indian national who is currently undergoing green card process (due to be complete near the end of this year/early 2018).

     

    My husband was arrested in July 2016 for restraint and domestic assault. I called the police on him. Since then, I have stood by him but due to ongoing issues, am considering divorce. I am pregnant and due with my/our first child on July 27, 2017. I moved to the US for my wedding and marriage; I am in Texas and have no connections here and would move back to Canada in the event of a divorce.

     

    But I am very worried about custody. My husband has indicated he would fight me for it. I am worried that I would be forced to stay in Texas, where I have no family and no connections or support. Can someone give me an idea of what I can expect if I move forward with the divorce and how the courts would work? My husband isn't a green card holder yet; he has an Indian passport and is on an OPT STEM work visa. He earns about 20K more than me, in case finances are considered in these things. I would quit my job to move back to Canada of course. Thanks for the help. 

  • Mon, Mar 27 2017 7:58 PM In reply to

    Re: Canadian mother married to US work visa holder; custody Q

    CanadianMother:
    I am very worried about custody. My husband has indicated he would fight me for it. I am worried that I would be forced to stay in Texas, where I have no family and no connections or support.

    He cannot seek custody of an unborn child.  If you plan on divorcing and moving back to Canada, go back now and proceed with the divorce there before the baby is born.  Unless it's important to you that your child have US citizenship there's no reason to wait if divorce is what you want.  If you seek a divorce in TX, you could have problems leaving the state with the child because the court will consider the impending birth in the proceedings.  BUT there is a possibility that your husband may very well find himself deported from the US if he is convicted of domestic abuse.  Consult local counsel and a Canadian barrister/solicitor.

  • Tue, Mar 28 2017 8:29 AM In reply to

    Re: Canadian mother married to US work visa holder; custody Q

    Honestly I would have moved already. I do think you have more leverage if you have the baby there, establish residency and jurisdiction. If you know you do not want to stay in the US I would have been gone already but that is just me.

    You need to contact an attorney. I have no idea if his arrest will affect his residency I am sure its possible he will be deported and have his visa yanked.

    But since you got pregnant by him he does have some rights and he may fight you. I would honestly be hoping he gets convicted and then problem solved if he is deported but I have no idea if this conviction would be enough to yank his visa.

    Good luck

  • Tue, Mar 28 2017 8:54 AM In reply to

    Re: Canadian mother married to US work visa holder; custody Q

    CanadianMother:
    My husband was arrested in July 2016 for restraint and domestic assault. I called the police on him. Since then, I have stood by him. . . .

    Other than you "stand[ing] by him," what has happened with this eight month old incident?  You told us he was arrested.  Has he since been charged?  If so, has the case gone to trial?

     

    CanadianMother:
    Can someone give me an idea of what I can expect if I move forward with the divorce and how the courts would work?

    This is an awfully broad question, and it is made even more broad because of the criminal issue and the lack of clear information about that issue.  One thing that you need to understand is that, until the baby is born, you are free to go wherever you want.  If you think you may want to return to Canada, you are probably far better off doing so ASAP than waiting.  I don't know if Canada or its provinces have residency requirements for filing divorce (in the U.S., the various states impose residency requirements that vary from 30 days to six months).  If you are able to establish residency in Canada, you can file divorce there.  Of course, your husband can file divorce in Texas at any time.  I strongly suggest you consult with a divorce lawyer in your home province about the residency issue, and you may also want to consult with a divorce lawyer in Texas.

     

    CanadianMother:
    My husband isn't a green card holder yet; he has an Indian passport and is on an OPT STEM work visa. He earns about 20K more than me, in case finances are considered in these things.

    None of this will matter if he is deported as a result of the criminal matter.

  • Tue, Mar 28 2017 11:08 AM In reply to

    • CJ
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    Re: Canadian mother married to US work visa holder; custody Q

    If divorce is even in the cards, buy your ticket and go now. If you wait, you risk not being able to take the baby with you once he/she is born.  As a married women with no children you can move about as you wish.  As a married woman with a child, you're "freedom" to come and go with that child drastically changes.  

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