Legal advice to take my daughter to my home country

[not2cleverRed]

In further researching my own question, I see there's a possibility that the child also has Indian citizenship. I believe that the OP would have mentioned it if that were the case.

Why? Her question doesn't seem to revolve around the child's citizenship, and whether the child could stay in India - just that she has in her possession the child's US identification, so what did she have to do to leave the country.

My child technically could have been recognized as a dual citizen - my ex just couldn't figure out the paperwork. (His sister did for her kids.)

As Dad isn't a permanent US resident himself, and her visa does not permit her to work legally in the US, and her status is completely ties to him, she is in a sticky situation.

 

[Zigner]

Why? Her question doesn't seem to revolve around the child's citizenship, and whether the child could stay in India - just that she has in her possession the child's US identification, so what did she have to do to leave the country.

My child technically could have been recognized as a dual citizen - my ex just couldn't figure out the paperwork. (His sister did for her kids.)

As Dad isn't a permanent US resident himself, and her visa does not permit her to work legally in the US, and her status is completely ties to him, she is in a sticky situation.

I agree - that's why I asked Blue if it mattered. There may be some law in India that would change the situation as it relates to India based on the child's citizenship. Is there? I have no idea, because that's an Indian law matter. I don't think the child has dual citizenship, or the OP would have mentioned it. With respect to American law, it matters not how the child gained her US citizenship (by birth or otherwise.)

 

[LdiJ]

Why? Her question doesn't seem to revolve around the child's citizenship, and whether the child could stay in India - just that she has in her possession the child's US identification, so what did she have to do to leave the country.

My child technically could have been recognized as a dual citizen - my ex just couldn't figure out the paperwork. (His sister did for her kids.)

As Dad isn't a permanent US resident himself, and her visa does not permit her to work legally in the US, and her status is completely ties to him, she is in a sticky situation.

Which is why its quite possible that a judge would give her permission to return to India with the child.

 

[Zigner]

Which is why its quite possible that a judge would give her permission to return to India with the child.

Huh?
What do you mean "return" to India? The child, apparently, has never been in India. I think it's far more likely that the judge would order that the child remain in the US. (Assuming no proof of abuse)

 

[LdiJ]

Huh?
What do you mean "return" to India? The child, apparently, has never been in India. I think it's far more likely that the judge would order that the child remain in the US. (Assuming no proof of abuse)

Mom has been the primary caretaker of the child (stay at home mom) and mom won't be able to stay in the US. Therefore, if we go strictly by best interests, the best interest of the child would be to go with mom.

 

[LdiJ]

I agree - that's why I asked Blue if it mattered. There may be some law in India that would change the situation as it relates to India based on the child's citizenship. Is there? I have no idea, because that's an Indian law matter. I don't think the child has dual citizenship, or the OP would have mentioned it. With respect to American law, it matters not how the child gained her US citizenship (by birth or otherwise.)

Citizenship by descent[edit]
Persons born outside India on or after 26 January 1950 but before 10 December 1992 are citizens of India by descent if their father was a citizen of India at the time of their birth.
Persons born outside India on or after 10 December 1992 are considered citizens of India if either of their parents is a citizen of India at the time of their birth.
From 3 December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian diplomatic mission within one year of the date of birth. In certain circumstances it is possible to register after one year with the permission of the Central Government. The application for registration of the birth of a child must be made to an Indian diplomatic mission and must be accompanied by an undertaking in writing from the parents of the child that he or she does not hold the passport of another country.

So, the child would also be a citizen of India if the child's birth was registered with the Indian government. I suspect that mom and dad would have done that since neither of them are US citizens and therefore there is always the possibility that they will be required to return to India some day.

 

[CTU]

Mom has been the primary caretaker of the child (stay at home mom) and mom won't be able to stay in the US. Therefore, if we go strictly by best interests, the best interest of the child would be to go with mom.

In this particular instance, with these particular facts ... I agree. I think she actually has a better-than-decent shot at getting permission from the court (if Dad objects) to relocate the child.