illegal alien custody rights

to anyone who may be able to help! my sister in law had a short relationship with a man. she ended up pregnant. she went through the whole pregnancy and he was not around. now the baby is 4 months old and he decides that he wants to see the baby. he is in this country illegally for the past 5 years and he speaks broken english. the family is worried about custody rights and if he would be able to bring the baby out of the country. he has never paid any money or time towards this child. he is not even on the birth certificate. the family is not looking for child support or shared custody. we just do not want him in any part of our lives or the babies life. this is not a selfish decision, trust me, this is in the babies best interest!!

[Illinois Parent]

If this man is in this country illegally, why doesn't someone report him? And no, he has no 'rights', is he is not officially here. The fact that he is not on the birth certificate helps you immensely. He can not even go to the Embassy or Consulate of his 'home' country and get the baby listed on any official documents. In fact, he can't even prove that he is the father, without a DNA test. But again, in order to get a court ordered DNA test, he would have to first admit that he is here illegally. Then he would be subject to deportation.

On the other hand, if this man is a decent person and just trying to better his life, morally he has a right to see the child. Afterall, he IS the father. Because the mother made a mistake in picking him to co-creat the child shouldn't mean that the child should be deprived of a loving father in his life.

You have a tough situation. If you could give more information, like what state you are in, what country he is from, what your real fears are, I as well as others may be able to help you further.


[This message has been edited by Illinois Parent (edited October 11, 2000).]

I THANK YOU FOR YOUR RESPONSES. I WOULD LIKE TO GIVE YOU MORE INFORMATION BUT THER IS VERY LITTLE MORE TO TELL. THE "FATHER" IS FROM MEXICO AND THE MOTHER IS FROM ILLINOIS. YOU ASKED IN YOUR REPLY WHAT THE REAL FEARS ARE... QUITE SIMPLY THE REAL FEAR IS IF HE GAINS ANY VISITATION RIGHTS TO THE CHILD, WILL HE BE ALLOWED TO TAKE THE CHILD TO MEXICO? I USE THE WORD ALLOWED LOOSELY BECAUSE IT SEEMS THAT THE LAW DOES NOT MATTER. IF YOU WANT TO TAKE A BABY OUT OF THIS COUNTRY, WHO IS GOING TO QUESTION THE "FATHER?" WHAT IF WE NEVER SEE THE BABY AGAIN? MEXICO HAS COMPLETELY DIFFERENT LAWS THAN WE DO AND THEY WOULD LOOK UPON THIS CHILD AS ONE OF "THEM" EVEN THOUGH HE WAS BORN IN THE U.S. AND IS A U.S. CITIZEN. THE OTHER FEAR MAY BE THAT THIS CHILD BELONGS WITH THE FAMILY THAT HE IS USE TO. HE LIVES IN A HOUSE WITH BOTH HIS GRANDPARENTS, HIS MOTHER AND A UNCLE. HE SEES HIS EXTENDED FAMILY, AUNTS, UNCLE AND 2 COUSINS ON A REGULAR BASIS. EVERYONE KNOWS THAT A CHILD SHOULD HAVE A FEAR OF STRANGERS AND THAT IS WHAT THIS MAN IS, A STRANGER. HE MAY HAVE BEEN PRESENT AT CONSEPTION, BUT THAT IS THE ONLY TIME THAT HE WAS AROUND. WHAT GIVES HIM OR ANY FATHER THE RIGHT TO COME AND GO AS THEY PLEASE? HE SHOULD NOT HAVE THE RIGHT TO POP IN WHENEVER HE WANTS AND PLAY "DAD" IT IS A MAJOR DISRUPTION TO THE ENTIRE FAMILY AND THE BABY! WHAT IS GOING TO STOP HIM FROM COMING 2 YEARS FROM NOW AND THEN NOT COME FOR 3 AND THEN SHOW UP WHEN THE BABY IS 7? I JUST FEEL THAT HE IS TRYING TO USE THE FACT THAT HE A U.S. CITIZEN FOR A CHILD TO GET HIM TO STAY IN THIS COUNTRY.
PLEASE REPLY. THANK YOU AGAIN.

[Illinois Parent]

First things first. Is this man's name on the birth certificate? If not, has there been a paternity test to prove he is the father? If not, then he has NO RIGHTS to see the child or be involved in any way at this point. If he shows up for a visit, don't open the door until he is proven as the father or there is a court order telling you to allow visitation.

As for the fear that he may take the child to Mexico, there are several things you can do. First, contact 1 800 THE LOST. That is the number for the National Center for Missing and Exploited Children. They also have an International division. They will be able to give you sound, legal advice and steps you can take to PREVENT an abduction. Because that is what you fear comes down to. International Parental Abduction.

Yes, Mexico does have very different laws, but, Mexico is a signatory member of something called the Hague Convention. So, in the worst case scenario, you 'could' get the child back if he did flee to Mexico. No, it won't be easy because first you would have to locate him and the child, then go through a lot of legal paperwork. The US State Dept and US Embassy in Mexico does help
process the paperwork with the Mexican government, but it can take a long time. That is why prevention is the focus.

If the man's name is on the birth certificate, you need to get custody and visitation court orders. First, your sister-in-law must get sole custody of the child. Second, because the man is an illegal alien, you must and in likelihood will get supervised visitation, if any visitation at all. This is because of his illegal status. Supervised visitation means the chances of him being able to get the child out of the US is slim to none. Next, you must get the child a US Passport, and then have a 'stop' issued on that passport. What that does is prevent him, or anyone else, from obtaining a second or replacement passport.

Next, if he is listed or becomes proven as the father, and is granted permission to stay in this country as the father of a US born child, (yes, it CAN and DOES happen), you then go BACK to court and get child support orders. If he does not provide support, he will then be in contempt of court and is punishable BY the courts. Up to and including jail time. Even then, if he is paying or not, and he has court ordered visitation, supervised or not, you CAN NOT deny visitation. That would put you in contempt of court and put you at risk for a change in custody declarations.

Additionally, since you are in Illinois, the chances and opportunities for him to flee with the child are greatly reduced because of the distance to the Mexican border. There is no way he can get on an airplane to Mexico with the child BECAUSE the airlines REQUIRE notarized signatures of BOTH parents in order for a child to travel to Mexico. Because of the 1800 miles or so between Illinois and Mexico, driving takes time. Time in which you can notify border patrol at his most likely point of crossing. Time to catch him before he gets out of the country. And the mere attempt - simply crossing state lines with the child in violation of standing court orders is a Federal Felony. Punishable by 7 years in prison and/or (in the case of a foriegn national) deportation.

SOOOO,,,,,There are a lot of legal steps you can take and a lot of resources available to you. Your case is far from the first of it's kind, as the number of services, laws and procedures attest. If you can tell me what Illinois county you are in, I may be able to direct you further to local resources. Good luck.

PS - You have mentioned the fact that this person is not legally in this country. You have mentioned the fact that he speaks only broken English. BUT - you have stated no legally viable reason to keep this man from having a relationship with the child - unless his name is NOT on the birth certificate and there is no DNA proof. Which of course, he can get if he is the biological father. Stating that it would be a disruption to your family will hold no water in court. The court's answer to you will be too bad. Get over it and work it out so that the child CAN have a relationship with the father, regardless of your or your family's feelings. Know this and understand this. The judges often say, if he (or she) is not suitable parent material, you shouldn't have had relations that could end in the creation of a child. BUT, you did and the child is here. Your opinions on suitablility are now null and void. The focus is now to be on ensuring the child has the best possible chance for a positive relationship with both parties responsible for it's creation. Sorry, but those are the hard facts.

[This message has been edited by Illinois Parent (edited October 13, 2000).]