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  • #16
    Nope did no physical abuse, nor threats.
    Extent of abuse was cutting up joint credit card when she threatened to buy our son a ticket to go with her to Canada. second was to take the battery of the minivan whenI discovered that the penalty for driving without a CA license is an impouund fee of $2000 (which of course I would have been liable for0.

    Sworn depositions from pre-school and 15 neighbors about no physical abuse and how 'she was happy as a clam' until i filed for divorce

    Comment


    • #17
      Originally posted by klinus:
      actually to be clear the TRO she filed was to stay away from our son because she was concerned that I would vanish with the child to a 3rd world country and never return. I suspect that the fact that i am a US citizen, own a home here etc. etc. AND maybe the fact that she is an out of status alien who has already kidnpped the child and the DA has confiscated her passport may have had something to do with the TRO denial.

      Going to the shelter was a craven attempt at laying the groundwork (I think) for a VAWA claim. She had no compunction about traumatizing our child with a month's stay in a shelter. As part of this process, there will be an extensive investigation into abuse, including testimonials from at least 15 neuighbors who are mad as hell about the kid being in the shelter and who have sworn no abuse

      One final question (since as a USC I have never needed to hire an immigration attorney) how much is the this whole process likely to cost her?

      Thx
      Family court never ruled on the guilt or innocence of abuse, Klinus. It ruled there was not enough preponderance of the evidence that the respondent will potentially harm her in any way.

      Sorry to disagree with you, but if the child is both of yours, she cannot kidnap the child. It is like saying you stole your own car *even though there is another name on the car).

      Third, she definitively felt threatened for herself and the child. That is why she went to the shelter, Klinus not because she is out of status and you are a USC. I believe there is more than you just cutting up the cards and taking the batteries out of the car at stake. Personally, I think there was a major argument when the cards were cut up as well as major arguments prior. Owning your own home means that no one will be listening within 15 feet of the house, unlike living in apartments.
      "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

      Comment


      • #18
        Originally posted by NeedHelpFast:
        Aren't we missing something here?
        Klinus, DID you abuse your wife (hit, punch, push, threaten to do physical harm to her)???
        Thought this question was of relative importance to this case.
        Well, we don't have the immigration details and we don't have her side of the story. Klinus states she is out of status. The question is whether Klinus had anything to do with her being out of status or purposely not adjusting the status if she was out of status before.
        "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

        Comment


        • #19
          I'd rather hear the other side of the story..

          One thing I have learned from being a victim of DV case is the shelters don't take you in that easy unless there are enough evidence to convince them that you are in danger...

          Comment


          • #20
            The only thing that i know is that the shelter called the cops within 2 days of her showing up; we don't know that she is till there.

            if she was willing to call the cops for my cutting up the credit card, then she would have called them if there was dv

            once i filed for divorce, I could not have filed the I-751 w/o perjuring myself

            Comment


            • #21
              DV is not just about physical abuse, there are many other types of abuse too.
              Verbal, emotional, financial, social,and so on.
              You don't need police reports either to help your case with Immigration, it helps but its not necessary. If she had enough evidence in any other DV way then she go down that line.

              It doesn't sound like to me that she is doing all this to stay in the US regardless whether she is out of status, you said yourself that she wanted to go back to Canada.

              Whether neighbors friends etc do not see themselves any abuse, believe me NO ONE can be sure what happens behind closed doors.
              Many DV victims can tell you that.
              -----------------------------------------------------------------------------------------------
              God Bless America - God Bless Immigrants - God Bless Poor Misguided Souls Too

              National Domestic Violence Hotline:
              1.800.799.SAFE (7233) 1.800.787.

              Comment


              • #22
                the only thing suspicious about this is DV suddenly happened close to the 2 year mark and after I filed divorce.

                she is claiming to the family court that she is a permanent resident and that she should get full custody.

                Taking the child to a shelter is considered child abuse by the Family Courts and there will be an exhaustive investigation.Physical abuse has already been ruled out; there will be pschological and psychiatric evaluations, which will prove the lack of abuse.

                Whether she stays or goes i don't care, as long as my son is NEVER again subjected to this unncessary trauma. If the CIS is still willing to grant her the DV abuse after they see the results of the Family Court investigation (which the DA will share with ICE} more power to her

                Comment


                • #23
                  What a load of rubbish! Taking a child to a shelter is not child abuse, and I cannot believe that the Family courts said that.
                  Jeez..does that mean all the women in shelters are child abusers now?
                  -----------------------------------------------------------------------------------------------
                  God Bless America - God Bless Immigrants - God Bless Poor Misguided Souls Too

                  National Domestic Violence Hotline:
                  1.800.799.SAFE (7233) 1.800.787.

                  Comment


                  • #24
                    I don't know if your wife works or not, but if she doesn't or doesn't have much money, why don't you offer to pay for or towards somewhere for her and your son to live, whilst the divorce is pending or until the courts decide on whats what?

                    This way they are out of the shelter and in a nicer place?

                    The problem is for an immigrant who is waiting for permanent residency, there is no where to go other than a shelter. There is no other help, so maybe she had no choice.
                    -----------------------------------------------------------------------------------------------
                    God Bless America - God Bless Immigrants - God Bless Poor Misguided Souls Too

                    National Domestic Violence Hotline:
                    1.800.799.SAFE (7233) 1.800.787.

                    Comment


                    • #25
                      the only thing suspicious about this is DV suddenly happened close to the 2 year mark and after I filed divorce.
                      This alone doesn't indicate anything one way or another (though it may be considered in totality of circumstances).
                      What if you waited and decided to abuse your wife just before 2 year mark, knowing that you could use it as defense later?
                      It's equally possible that what you say is true and she is the culprit.
                      How would we know?

                      For legal advice you should consult a family attorney.
                      For verdict you should petition the court.

                      Comment


                      • #26
                        Good call.
                        Take it to the court and get the judge's verdict (just as suggested before).

                        Good luck

                        Comment


                        • #27
                          Originally posted by klinus:
                          Current law provides that in the absence of a court order determining rights of custody or visitation to a minor child, every person having a right of custody of the child who
                          maliciously takes, detains, conceals, or entices away that child within or outside the state, without good cause, and with the intent to deprive the custody right to that child,
                          shall be punished by imprisonment in the county jail for a period of not more than one year, a fine of $1,000, or both, or imprisonment in the state prison for 16 months, two or three years, a fine of not more than $10,000, or both.
                          (CA Penal Code sec. 277)
                          "child stealing is child abuse."Child abuse consists of any act, or failure to act, that endangers a child's physical or emotional health and development.Yanking the kid away from his normal environent is defentely endagerment.

                          I actually offered, prior to filing for divorce to do the I-751 in exchange for split custody of our son. She refused to do so.

                          She does not work; but she has $450K in her Canadian bank. Between the retainers for both her family law and immigration attorines she has spent $20K.

                          Long and short - she has adequate funding - this hoopla is a way of abusing the system since she knows that going the non-VAWA way of waiting for the final divorce decree would cause her to lose custody.
                          Unfortunately what for her is what she did not realize is that there is a preponderance of evidence (at least the physical part, mental will come on the next few months)to prove that there is sufficient reason within the CA legal system to have sufficient cause to believe that this entire manouever was an attempt to perjure the US Govt. with a false VAWA claim.
                          This nightmare for my son will be over by august 8, when the family court will rule that the best interest of the child is the status quo that she ripped him away from; after that she is on her own and the ISC child will be back safely with his USC father who will now be armed with a court order.
                          You are citing the California Penal Code 277. I read the code and it does not say anything about in absent of a court order, etc. Currently, both of you have custody of the child. What has not been determined in Family court, from what you have told us, is who should be the custodial parent, either joint legal, joint physical, primary legal, primary physical, etc.

                          Here is what California Penal Code 278.5 actually says, "(a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

                          (b) Nothing contained in this section limits the court's contempt power.

                          (c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a
                          defense to a crime charged under this section."

                          The lawful custodian is both you and her until family court deems otherwise.

                          Abuse can be physical or emotional, Klinus. And yes, there needs to be a preponderance of the evidence, but not beyond a reasonable doubt. The standard is much lower in family court. If she has a good attorney, the failure of the TRO serves as a platform on how to argue her case in family court, and it will be vigorous.

                          However, you are making a grave mistake if you believe USCIS will look at perjury if she files a VAWA claim. First and foremost, she may already have. Second, if it does not go that way, USCIS still consider it a private matter between the two of you and is not concerned too greatly on civil issues a majority of the time. third, the dissolution of marriage will either be no fault or fault, who gets physical child custody, alimony, child support, etc. As long as it is not deemed her fault, the dissolution of marriage will have no bearing on her VAWA claim. Fourth, if you bring in any immigration issues, you are a duck in open season. Everything you do from before you were married up until the point of filing for divorce will be examined. Finally, you need to concentrate on your civil proceeding in August. Leave the kidnapping charge out of it, unless you want your life scrutinized, and pray that the judge will be lenient on you and her.
                          "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

                          Comment


                          • #28
                            Originally posted by klinus:
                            Hudson:

                            By and large the family courts frown on child concealment, especially when the concealing parent chooses not to let the other parent or at least the authorities know. Among other things, this creates a situation where the Court's authority has been usurped. They tend to come down heavily unless the abductor has compelling evidence to show that the minor child is in danger. As far as 278.5 we'll see what happens post hearing.

                            In all probability, she is going to state abuse as the reason for the shelter and why she needs full custody. This will require a trip to family court services, who will likely refer this to evaluators, followed by a long cause motion. This whole thing will take about 6 months at the max, and will include psychiatric evaluations for both of us (mental abuse allegations, here we come)

                            In the meantime, let us consider the facts: She is claiming permanent residency. All he has is an expired conditional GC, and will not be able to show anything that shows that she can stay. She is driving the infant around with a Canadian license, even though in California you have to get one from the DMV within 10 days. The local police have warned her against frivolously calling them, and that she cannot file false child abuse charges and that stealing my passport is a felony; child abduction and an admission to "not knowing about 911" (distributed across 3 police reports). Last but not least, the local Child Abduction Unit of the DA has "agreed to not press charges if she surrenders her passport (which she did) aggress to stay in the county and not to leave the state with the child – until the court date, ata which things may change.

                            California Family Code § 3048(b)(1) contains the following factors that a court may consider in determining whether there is a risk of abduction: whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person; whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person; whether a party lacks strong ties to the state; whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship, which is considered only if evidence exists in support of another factor specified in the section; whether a party has no financial reason to stay in the state, including whether the party is unemployed, is able to work anywhere, or is financially independent; whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling a primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying for a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence; whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence; and whether a party has a criminal record.

                            My family law attorney, with 30+ years under his belt, believes that this the key determinant in custody; further if we can prove the issue of lying to obtain VAWA (which we will find out if she gets a ruling prior to the final divorce decree which does not granted until post custody) that we will use it against her in family court.

                            To be clear, everything that I have done in my life is going to be open season, and, frankly, I don't have to worry about the USCIS. Also, while technically family law is civil they can trigger criminal charges.
                            Klinus,
                            1. Tes you are right the state does frown on child concealment, but this occurs only whnn the state has identified who the physical custodial parent is. And this will be a question for the family court to consider when you go through divorce proceedings. What you do not understand in Family court is that the benefit of the child comes first before any parent. And if she, at that point in time, reasonably expected for you to do the same thing or that the child was potentially in danger, then the court would not consider child concealment at this time. The court will warn both of you that any attempt in so future will be met in the fullest extent of the law. The reason, family court uses a lower standard of proof, unlike criminal court. If the court believes both or either of you (equally) could conceal the child, then possible criminal charges might be pursued in the future.

                            2. You have given very little facts, and the facts you have given are circumstantial at best. First and foremost, her applying for permanent residency has little to do with the divorce. Her residency or lack thereof might complicate the joint custody or even sole physical custody of the child. For instance, if joint custody is granted, then she will undoubtedly have to remain a permanent resident, and particularly, a resident of California. The reason, harm of child due to a lack of stability. If the child spend half the time in Canada and half the time in California, then that lack of stability could potentially harm the child. If you or her are granted sole custody, the child will undoubtedly have to remain in the US and generally in California or the West Coast. And hwo ever gets sole custody will probably have to apy for some or most of the expenses of the noncustodial parent to travel. And personally, I don't think either of you will get supervisory visits because there is probably little evidence either of you will harm the child anyway.

                            3. The other information you gave is circumstantial as well. Even you stated the police warned her about making false claim, specifics are the most important. And if I was her attorney, I would put the police officers on the stand by having them state no intentional false claims were presented. The reason, the child was probably with you in your home. And since the police do not have any record of either of you having sole custody, the police are really not going to do anything unless for the blatantly obvious. As for the DA, I would have taken both of yours, but more than likely, your attorney is staking his reputation with the DA's office by promising you that you will not do the same.

                            4. Most of what you are giving is a he said, she said testimony, nothing more. The fact that your attorney has 30 plus years only suggests your attorney is a good litigator, and nothing else. If she has the same attorney, the only thing you will be assured of is a cat fight like you have not seen.

                            5. You are not going to be able to prove perjury at all, Klinus. Your attorney will lose on that argument for sure, namely that USCIS periodically rule in favor of the immigrant who claims abuse from the USC petitioner. The reason, USCIS has a much different criteria gfor abuse and her immigration attorney will testify to that. He can cite references where no fault divorces can lead to the a VAWA claim. More importantly, she can also claim a wiaver for I-751 as long as she proves she entered the marriage on faith and that the divorce was not her fault. More than likely, the judge will probably enter a no fault divorce and not rule any anyone. That is the most likely scenario.
                            "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

                            Comment


                            • #29
                              I know you angry and desperate to see your son, but I'm sorry you seem like you really are looking out for yourself and not your son.

                              You seem to be determined to get custody of your son and keep her away from him. You talk about the importance of a parent seeing their child, then you talk about keeping her away from your child if and when you get custody.

                              When I asked if she worked, you said no, but she has money in Canada.
                              Its like you are implying that she has no access to money here. You are coming across like whats yours here is mine, and not ours.
                              She should be receiving money from you to support your son. You don't mention this.

                              By the way, she is NOT an illegal immigrant. She will not be classed as one either.
                              Just because her GC expired this month USCIS will not class her as illegal. She maybe out of Status, but she is NOT illegal.

                              You say that the police took her passport away. Well the US is then stopping her returning home, if she wanted to or had to. They are keeping her here.

                              I also don't understand why her passport has been taken off her. That will be her only ID, other than an expired GC. What now will she prove who she is and her citizenhsip?

                              Usually it is not necessary to take her passport off her, all they have to do is alert all boundaries and airports (in fact the US have a system in place when a child is at risk of being taken out of the country).
                              -----------------------------------------------------------------------------------------------
                              God Bless America - God Bless Immigrants - God Bless Poor Misguided Souls Too

                              National Domestic Violence Hotline:
                              1.800.799.SAFE (7233) 1.800.787.

                              Comment


                              • #30
                                Frankly, most illegal aliens tend to keep a low profile – no, not her....
                                What does that imply then?

                                I don't know why you came here for advice to be honest, everything anyone has told you, you seem to quote what the law is, what the court will do, what this lawyer said and so on.
                                If you believe and trust what they all say then so be it.
                                If you think the courts can overrule USICS..so be it.

                                I think you came here hoping that everyone will agree with you and support what you are doing.

                                You seem like a very educated person, and seem that you have really done your homework and have all the legal people around you that you need.

                                We don't know both sides of the story, no one ever does on this forum.

                                What makes me upset is that you are putting down all women who go into shelters and that its a crime.
                                I have been in a shelter and I have met many women who sought shelter from their husbands with their children. None of them got into trouble for kidnapping their children like you state.
                                Not all shelters are bad, and in fact she might even be in a safe house which is somewhat different.
                                They all have the authorities who work closely with them, seeing that the child is looked after properly, seeing if there has been any abuse and keeps a real close on everything.

                                Until a court decides about custody I can't see what she has done wrong, apart from taking him away from you.
                                You are worried she will take your son to Canada and she is worried you were going to take him to India.
                                India is a lot harder to get a child back from then Canada.

                                Wait until court date and if you are correct in what everyone you spoke to said, then you will get your son back
                                -----------------------------------------------------------------------------------------------
                                God Bless America - God Bless Immigrants - God Bless Poor Misguided Souls Too

                                National Domestic Violence Hotline:
                                1.800.799.SAFE (7233) 1.800.787.

                                Comment

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