Legal Question in Family Law in India
Custody of Children and Pending Divorce Case
A person who has filed a divorce case against his wife for adultery and psychiatric disorder would like to relocate to the U.S or Australia under a work visa with his three kids.The kids who are 12(girl),7 & 3(boys) years old have been staying with him for 2 years in the country of assignment with a maid while their mother was sent off to her home country after the above problems she had caused.Other than the adultery committed,she was also suffering from Paranoid Psychosis which was certified later by the doctor.
This person has a concern that his spouse may get a visit visa to the U.S or Australia and reach there to trouble him and the kids?If so,will the law be on her side since the mother is given preference?Will the person be sued for taking away the kids from their mother?Will he have to share the children with her?
Can a prior petition to the Immigration help prevent his wife from coming into the country and cause hassles?Even the children could give a verdict on their mother in their own way and would this hold any value?Also,would this person be able to get a visa for the maid who has been with the family since several years to take care of the kids while the divorce gets finalized which could take years.Thanks.
6 Answers from Attorneys
Re: Custody of Children and Pending Divorce Case
Firstly it is important to know as to where you are residing at present. if the divorce case is pending whether custody of the children is given to father as per any court order. the evidence of the 12 year child may have some significance .
Further if it is proved that she is suffering from psychatric disorder then it may help you to get custody of the children through court which can resolve your problem of taking the children abroad after taking permission of the court.
For detailed opinion on the subject of immigration and preventing a spouse from leaving country of her residence, It will be essential to know further factual details . Hence better to contact a local lawyer .
Re: Custody of Children and Pending Divorce Case
in the given circumstances i think that you need not to worry much as your wife will not be able to take the custody due to her disease and all other things like visa issuance etc are not in ur control
Re: Custody of Children and Pending Divorce Case
The person who is psychiatric or paranoid or luntichas get a guardian appointment before pursuing any civil right before the competent court of law. Hence the person who is looked after by the guardian cannot be granted the cusdoty of the children.
You have no right to refuse or stop any person from visiting any country.
Granting or non granting visa are to be seen by the visa/immigration department.
Your next qurey whether she be granted the cusdoy of the children, my answer is that it is well settled law that psychiatric, paranoid and luntic persons cannot be granted the cusdoy of the children by the court and in your the wife is suffering from the psychiatric and paranoid than the court will not grant any cusdoy of the children as the same will be injurios and against the intereat & welfare of the children.
The consent of minor children are immaterial and carry no value.
Regarding granting visa to any persons is the concern of visa/immigration office.
Re: Custody of Children and Pending Divorce Case
You have received excellent advice regarding the status of the divorce in the other country. As far as the US is concerned, if you are bringing the children and a maid into the country in violation of a valid court order from another country, you will probably be barred from ever returning here (or any other country). It sounds like you need a lawyer in the resident country to resolve these issues before you leave.
Re: Custody of Children and Pending Divorce Case
As per Guardianship & wards Act, the father is the natural guardian of the children above the age of 5 years.You can not stop your wife in getting visa which is otherwise concern of immigration Department but you can get stay against your wife to visit your place or to take away your children on the ground of her illness stating that she may cause harm to the children.You can talk to your wife for divorce by mutual consent.generally in case of girl child mother is given preference over father but while passing any order the court also consider the welfare of child,willingness of child etc.
Re: Custody of Children and Pending Divorce Case
Please specify the place of marriage and birth of children, the religion, and present place of residence.
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