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h20bug11 · May 11, 2012, 06:28 PM

What could a US citizen father do if his ex-wife who is an illegal alien from Mexico goes back to her home in Mexico with their American born boys 6 yr old and 3 yr old? Would that be kidnapping if both parents had joint custody? What if she did that before the divorce was final? Could the father call the police and file kidnaping charges against her and if so what would happen? The boys do NOT have dual citizenship and so are not citizens of Mexico.

ScottGem · May 11, 2012, 06:38 PM

How did they cross the border without both parent's permission? You can certainly get a warrant for the return of the children. The questions is whether Mexico will help in returning them. You need to consult an attorney

AK lawyer · May 11, 2012, 06:38 PM

It is unlikely that you are going to make childnapping charges stick. First, you would have to research the law of whichever state the family was in before they left. It may or may not make her conduct criminal. But, assuming it does, she would have to be extradited from Mexico.

A more productive approach would be to get the divorce court to order her to return the boys. Then the state government could request the Mexican government to return the children.

Fr_Chuck · May 11, 2012, 07:41 PM

Yes, you get the divorce moving along, you try to get an emergancy custody order and a order to have to turn the kids over to you, and/or a order that she can not take them out of state.

But yes get custody in court and if she has gone, you can work to get the kids returned.

h20bug11 · May 13, 2012, 06:46 AM

Only problem is getting custody. As I am sure you are aware that an overwhelming amount of time, the mother gets custody of the children even though the lawyer for the father says they have a very good shot because as they were born and with his home based job he was the primary care giver for the majority of their lives. The problem I have is before the divorce settlement I would assume in the eyes of the law both parents have joint custody and if one doesn't want such a drastic measure to be taken then can they not prevent it? She has threatened to take them before before the trial begins because she fears she will lose the custody battle. Remember that the children have absolutley no papers as them being legally in Mexico as a citizen. They do NOT have dual citizenship. The mother doesn't even have their birth cerficates or their social security cards. In a sense if she was to take them over their would they not be there illegal? And doesn't Mexico deal with illegal much more harshly than the US? Does the father have to wait until the mother is there in Mexico and file for the divorce and custody with the mother being absent and win custody on those grounds? It's a very complex situation. My fear is those boys growing up in Mexico and when the drug cartels find out they are US citizens then it is almost 100% assured they will recruit them either by force or by other means to run drugs across the border as 8 to 12 year old boys. Mexico is a very dangerous place especially for little boys with US citizenship that can't defend themselves

AK lawyer · May 13, 2012, 07:11 AM

Originally Posted by h20bug11

... As I am sure you are aware that an overwhelming amount of time, the mother gets custody of the children ...

No. That is not necessarily true.

Originally Posted by h20bug11

... before the divorce settlement I would assume in the eyes of the law both parents have joint custody and if one doesn't want such a drastic measure to be taken then can they not prevent it? ...

Yes. Both of you have joint custody, and if you can persuade the court that there is a real danger that she will take them and go, you should be able to get approproate safeguards in place.

Originally Posted by h20bug11

... She has threatened to take them before before the trial begins ...

Do not wait for the trial. Ask the court to enter a temporary order now.

Fr_Chuck · May 13, 2012, 07:26 AM

Actually no, if she is a mexican citizen, the kids were also be mexician citizen, just like they are US by being born to a person of US citizenship.

They would have dual citizenship both allowed in US and Mexico. She would merely show the US birth certificate and establish their Mexican citizenship.

And no small children in the custody of a mexician citizen ( she chidren) would not even be questioned once they were in Mexico Plus she can get a birth certificate in the mail in a matter of days if she needs to ( US birth certificate)

AK lawyer · May 13, 2012, 08:08 AM

Originally Posted by Fr_Chuck

...
They would have dual citizenship ...

And your point is?

Oh. You were just responding to this:

Originally Posted by h20bug11

... They do NOT have dual citizenship. The mother doesn't even have their birth cerficates or their social security cards. In a sense if she was to take them over their would they not be there illegal? ...

But I fail to see what difference that makes. Except that if OP was correct, they could perhaps be deported from Mexico. But he isn't and they couldn't, I guess.