Reclaiming custody of child (lawyers? parents?)

[divemaster]

I would like a little legal advice as well as anecdotal evidence from others who might have faced a similar situation.

My fiancee lost custody of her only son after her husband of 10 years divorced her. I have read the divorce settlement and the judge's comments, so I know she is telling me the truth about the circumstances.

Background facts:
She is a resident alien w/ Green Card, but not a U.S. citizen.
She was a housewife and has never been in the U.S. workforce.
She was very naive about the U.S. legal system.
Her son, who is 8, is the most important thing in her life. She misses him every day, as I suspect only a mother could really understand. She cries a lot and wants more than anything in this world to be able to raise him and be a motherly presence in his daily life.

Here are circumstances of the divorce:
Her husband filed in another state (military home of record), and did not tell her in time for her to begin to be prepared.
He didn't give her any money to find a good lawyer.
He falsified a domestic violence charge against her (said she slapped him). She was handcuffed and taken to jail, in front of her son, and had to stay in jail over the weekend. The judgement against her was set aside after a 3-month probation.
He even admitted to the divorce judge that he had done these things in order to get her deported. The judge tore him a new one (it's in the record), but did very little to counteract the husband's stated goals.

My fiancee was under the impression (helped by her lousy lawyer) that the only way she could stay in this country and at least be able to see her son during summer visitation was to agree to the settlement.

The husband got custody; he got the house; he does not pay any alimony.

My fiancee is glad to be rid of her ex: he was having an affair, and was not a kind man to her at all. He seems to have the mentality and self-centered attitudes of a spoiled 10-year-old. In fact, after he got custody, he didn't even keep his son, but shipped him off to his parents.

My questions are:
How difficult will it be to convince a judge to award (us, after we get married) custody?
Do the odds change with the age of the child?
Will the fact that she can't have more children (hysterectomy) help her/our case?
How much in legal bills should we prepare ouselves for?
What can we do to increase our chances?

[Persephone]

Child custody laws vary so much from state to state--hell, they vary ridiculously from county to county. I am NOT a lawyer, and I've never had experience trying to actually get custody of a child, but I do have a stepson, and we may be facing issues like this someday. My attorney has told me this much:

Custody battles can be VERY expensive.

The age of the child comes into play when the judge feels the child is old enough to speak for him/herself. A smart judge will take into account the wishes of the child. He/she may not abide by said child's desires, but he will at least listen to what the child has to say.

[kellibelli]

Focus on the angle that the dad has abandoned child by leaving him at grandma's.

Tell the ex NOTHING of what you are doing, tell NOONE!!!!! Especially the kid, start proceedings in secret, a lawyer will know what to do, and call around, NOW!! not after you are married, NOW, call Support to single MOthers or a similar womens organization, they can recommend a real bastard lawyer.
This may cost you everything you have, so be prepared, and I know nothing of you, your past , or hers, but be prepared to see old skeletons dragged out, and if thats the case, decide if she should proceed before or after you two wed.

She should sue him for the home too, and maybe a defamation(?) suit for the false arrest, pain & suffering etc, and she can ask for costs too, so the ex pays your lawyer.

Good luck.

One more thing, keep a journal of EVERYTHING! all the calls to junior, all the visits, all the times she is not allowed to see him, all of it, and video of junior with her too, cant hurt.

[divemaster]

Thanks Cristi and Kellibelli,

Good advice; I really appreciate your ideas. The suggestion about the journal was excellent; I'm going to suggest it to her immediately. Also for getting organizational support.

I have already told that any chance she has depends on her never mentioning any of this to anyone. The way I see it, we'll have everything lined up and ready to proceed legally. Then, formally ask the ex to agree to a change in custody (no battle). Give him about 20 minutes to decide (which, BTW was about as long as she had to make her decision in divorce court). When he refuses, then whammo with all we've got. See how he likes having no time to prepare. Likely he has prepared for this possibility, but what can you do?

[Diceman]

DIVE: I think that I have a pretty good idea why the father got custody. You say that your fiancee is not a U.S. citizen and has never been in the American workforce. I strongly suspect that, at least in the judge's mind, this meant that she had very little in the way of marketable job skills. The judge may have fealt that she had little chance of providing for the child. Your fiancee might also have been assuming that, being the mother, she would get preferential treatment, and so her arguments were not as well-crafted as they could have been. In these cases, an appeal with a good lawyer might well help.

That said, I have no idea who you, your fiancee, or her ex-husband are, or what you people are like. If he has any kind of a decent case, then this fight can get very expensive. There's a reason why lawyers are always driving new BMW's.

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"I had a feeling that in Hell there would be mushrooms." -The Secret of Monkey Island

[kellibelli]

good point, it sure wouldnt hurt for her to be EMPLOYED when you go back.....at the same time, courts are not supposed to decide on the basis of economic status.

[handy]

Ah, lucky Cecil answered this exact question once, na just kidding.

Shoot, try the newsgroup, alt.childsupport ?

I used to read it.

Still, going to need a lawyer. Thus, looks like a negative dowry :-)

[Ringo]

A friend of mine finally won custody of his son (then 7) at the end of '98. It took 18 months and $30,000 (no divorce - parents were never married).

[handy]

I was just recently researching aliens & US citizenship on the web and you should find a lot of information on that if you search at, say, www.ask.com. (http://www.ask.com.)

Interesting, one used to be able to marry a US citizen & become one. But now you can marry one but only get 'conditional citizenship' for two years. & the INS actually goes around and inspects makes sure you are living like married people...

[Lucky]

Handy;

It's not quite that bad. A person who is married to a US citizen can apply for citizenship after 5 years. As to the two year checking-up period, the degree to which INS investigates depends on whether or not they feel you may be entering into a marriage soley for the purposes of immigrating. They do not automatically visit and keep tabs on everyone.

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"I think it would be a great idea" Mohandas Ghandi's answer when asked what he thought of Western civilization

[handy]

Lucky, sure they do, it says so on that INS home page. They select couples & visit them & see how they are doing.

Also, only a certain number of green cards are given out each year & more important people get them first.

[ruadh]

Handy, I work in immigration law. Trust me when I say the INS hasn't got anywhere NEAR the resources to keep that close tabs on all the marriage-based green card applicants in the country. At the initial interview (at the INS office) you'll probably have to show evidence that your marriage is real, and at the end of the two years when you apply to remove the conditionality from your green card you may have another interview. But unless the marriage either is a sham, or strongly resembles one, you won't have the INS breathing down your neck the whole time.

Also, only a certain number of green cards are given out each year & more important people get them first.

Well, it isn't the green cards themselves that are limited - it's visa numbers, which enable you to apply for a green card - and they're only limited in certain categories. For immediate family members of U.S. citizens, there is no limit.

The second part of your statement is also not strictly true, but I haven't got time for that now.

[handy]

ruadh, maybe the INS should update their web site :-)

[ruadh]

Handy, are you familiar with the concept of "deterrence"? :)

[handy]

ruadh, oh, so that explains it.

I could sure use the right info sometimes, you're spared from giving it to me unless I write you email. You could be useful someday as Im not all that far from SF.