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"battered spouse . WAVA as the last ditch option to staying here

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  • #16
    I apologize fo the long post. She has been in the country since March, 2004 and she came without a visa (Canadian citizen). She had been in the country a long time (20 years ago)
    The marriage deteriorated the moment she got her conditional. She wanted to take our child to Canada for his nephew's wedding; I refused since he had just started a new pre-school and had had ear and adenoid surgery. She said she was going to take him nevertheless. The only way to prevent her from taking him from the country was the automatic restraining order that comes with the petition.
    We had had earlier conversations about the imminent breakdown of the marriage. I offered to file the I-751 (through her relatives, the Church and a court approved mediator), if she agreed to split physical custody. Her response was that the court would award her sole legal and physical custody and that she did not need me for immigration purposes.
    3 weeks after my filing the divorce petition, and after stealing my wallet, passport and causing $1000 worth of damage to my separate property house, she kidnapped the child and headed to a shelter, She filed a TRO, which was denied by the family court. She is claiming child abuse in the TRO, which was invalidated by the police, the child's doctor and the pre-school. She is also asking for sole legal and physical custody, and is likely to be claiming physical and mental cruelty as the basis for that. In that scenario, the family court will rule on the validity of the claim,
    In terms of a "different standard for immigrants" California Family Code § 3048(b)(1) contains the following factors that a court must 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.
    This is the argument that we are asking for supervised visitation, and joint legal custody. The best interests of the child is the status quo, which is to continue to stay in California, which cannot be guaranteed when he is with her, given the fact that she has already demonstrated her penchant for kidnapping; further the enforcement arm of the Family Court, the DA considers her enough of a flight risk that they made her surrender her passport (which they would not have asked of an USC). Also, her current argument is that she has permanent resident status in the country; other than using VAWA, that will not happen until post divorce decree and that said decree will not happen until the custody is determined. If she does suddenly have status, we will ask that argue that she got it by falsely claiming VAWA, which the court will already have proven unfounded...
    I will be in full compliance with the family court decisions – I live here.
    By definition, once I filed for divorce, filing I-751 would be perjury. There is adequate evidence – from unbiased third parties – that I offered to do the I-751 so the concept of "using immigration status as a control mechanism" is just nor the case.


    • #17
      I am a woman and have been a victim of domestic violence myself.

      klinus.... do you love your child? If you do, then stop fighting.. it's getting too ugly and it badly hurts your child.


      • #18
        Absolutely I love my child. Unfortunately he is in a shelter because his (completely verifiably) unabused mother is faking VAWA.
        God knows what damage has been done so far.

        i'm going to court early August so that he can come back to the home he has lived in all his life, his own bedroom, and most importantly go back to the speech delay program that he was part of.

        IF I don't "fight" child abuse will continue; this is happening in court and he does not see it and that is significantly less damage than being in a shelter with drug addicts.

        I will accept the decision that the court makes.


        • #19
          <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">I will accept the decision that the court makes. </div></BLOCKQUOTE>

          That's a good call.

          Prepare all your evidence and make sure you have a good attorney.

          Before going to court spend some time and reflect on it.

          Be calm.


          • #20
            Thanks Rationale:

            Since the bulk of our approach is that at the time of the hearing (next month and less than 4 weeks after her conditional expires), and her approach is that she has/will get approved for permanent, I've actually hired an immigration attorney in additon to my (very good) family lawyer to supplement and to provide testimony.

            I've had plenty of time to reflect - tough to sleep when your kid is in a shelter w. God knows what riff-raff.

            I'm staying calm (tough as that may be given the above); after endless googling I've found the penal code which she has violated that's a felony which makes for automatic deportation and hopefully ensures that the alien never harms my boy again.

            Thanks again


            • #21
              You are welcome

              Good luck


              • #22
                Hi, I just went thru a VAWA petition but I will honestly tell you, it's not as easy as people think. Making false accusations will infact hurt her case rather than help her. In my case, they asked for a CORI check and I had to wait for the background check. My interview was quick and pain less but I went through a lot with my ex. But she could use the psychological, sexual abuse card and that will be more helpful than the police reports.
                I wish you well and I hope you get your son soon. If she is 'a little nuts' great that she is out of your life. Goodluck!


                • #23

                  Thanks for your posting..

                  What is a CORI check?

                  The limit of "psychological abuse" was cutting up the joint credit card when she threatened to take our son to Canada and taking the battery out of the minivan when she refused to get a CA drivers license. AS far as sexual abuse goes, does seperate bedrooms count as that/

                  Finally, i would love to see the results of a psychiatric evaluation.

                  How long did your VAWA take from the date you applied? or from the date of ex[iration of your conditional/



                  • #24
                    i went through VAWA myself... pshycological abuse have to be prooved is not only her word what counst... she must provide with clinical evidence and unrelative testimonies in order to proove it! ... you said in previous posts that you dont care is she stays or goes.... then leave it! inmigration dont have naything to do with your court case and viceversa unless you want to harm her!!! and put her moral character on the table..... focus on the well being of your child...


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