U.S. citizens may petition their fiance or spouse to join them in the United States. In many cases, the fiance or spouse may have children that wish to accompany or “follow-to-join” them. If the child(ren) is unmarried and young enough, they may qualify to join or follow-to-join. This post will give you a starting point on what the ins and outs of bringing Filipino children along with their parent.
Children of K-1 Visa Holders
Children of a K-1 holder would be eligible for a K-2 visa if they plan on accompanying the parent, or plan to follow-to-join as long as:
They are unmarried
They are under age 21
Children of CR-1 Spousal Visa Holders
Children of a CR-1 holder would be eligible for a CR-2 visa if they plan on accompanying the parent, or plan to follow-to-join as long as:
The child is unmarried
You married before the child turned 18
You filed the CR-2 petition before the child turned 21
Depending on who has custody of the child(ren) and your particular situation, the U.S. Embassy/Consulate may want to see evidence that the alien fiance or spouse has received the requisite permission to travel outside the country with his or her child(ren). Usually this is accomplished with a court order or a notarized letter written by the child’s other parent indicating his or her consent for the child to travel with the alien fiance or spouse.
If your fiance or spouse and their ex-spouse have joint custody and/or the children are legitimate and both biological parents are listed on the children’s birth certificates, you may require a court order allowing the children to immigrate to the US or a notarized document from the biological parents allowing the children to immigrate to the US. Check with the local U.S. Embassy/Consulate for the required documents.
Important Note: Check your own country’s law on removing your children if their other parent is staying behind.
If you are planning to bring children of your fiance or spouse to the United States it will be up to your fiance or spouse to comply with their country’s custody requirements. Even if the children are legally in your fiance’s or spouse’s custody they may be required to obtain a court order or written consent from the other parent for you to take the children out of their country.
Custody of Children
Under Philippine law, a child born out of wedlock is illegitimate. Being illegitimate, the parental authority over his/her person is vested in his/her mother as outlined in the Family Code of the Philippines, which provides:
Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father.
Thus, the custody of an illegitimate child shall always remain with his/her mother. This is his/her mother’s inherent right, which the latter cannot be denied of, unless there is a compelling reason which renders her unfit to exercise such right.
Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else. In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease.
The act of recognizing an illegitimate by the father gives rise only for the opportunity to obligate the latter to give support to the child but it does not bestow upon the father the right to demand the custody of the child.
If the father has an existing visitation or custody arrangement approved in court then he may take steps to prevent the child from leaving the country including alerting the Bureau of Immigration. There is no specific guarantee against this move because the father has a right to have access to his minor child.
Note: If the child or children bears the surname of the father the mother should be prepared to show proof of her relationship to the child or children usually a birth certificate.
Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.
Children conceived or born during the marriage of the parents are legitimate. Legitimate children shall have the right to bear the surnames of the father and the mother.
Children conceived and born out of a valid marriage are illegitimate, unless otherwise provided in the Family Code, Illegitimate children as defined under the Civil Code of the Philippines who were born prior to August 3, 1988 and whose births were not previously registered shall be registered under the following rules in addition to those provided for delayed registration of births:
Recognition or acknowledgement of an illegitimate child may be made jointly by the father and mother or by only one of them (Art. 276 C. C.) When the father or the mother makes the recognition separately, he or she shall not reveal the name of the person with whom he or she had the child; neither shall he or she state any circumstance whereby the other parent may be identified (Art. 280, C. C.)
An illegitimate child has the right to bear the surname of the parent recognizing him (par. 1, Art. 282, C. C.) However, an illegitimate child who is not recognized or acknowledged by both parents in accordance with law shall be registered under the surname of the mother (Opinion No. 147 S. 1986, Minister of Justice).
Recognition shall be made in the record of birth, a will, statement before a record, or any authentic writing (Art. 278, C. C.). If made on record of birth at the time of registration the affidavit of acknowledgement printed at the back of the certificate of live birth shall be signed and sworn to jointly by the parents of the illegitimate child, or only by the mother if the father refuses (Sec. 5, Act No. 3753).
Travel Clearance for Minors
A DSWD travel clearance is a document that is required by Filipino children below the age of 18 who intend to leave the country with someone other than their parents. It’s issued by the Department of Social Welfare and Development (DSWD).
Note: A travel clearance is not needed if the minor is traveling with at least one of their parents.
The mother has absolute parental discretion over any “illegitimate” children by the above definition. That means the father would need to secure a court order to have any ounce of custody.
If the child is the subject of an ongoing custody battle, they wouldn’t be eligible to be issued a travel clearance unless a court order is issued. You will be responsible for notifying the Bereau of Immigration to include the name of the child in the watchlist.
Traveling with Minors
When traveling with minors, there are a few things that you will want to prepare for in advance. Here is a list of a few items to help you prepare:
- Your child or children will need a valid passport with at least 6 months left in its expiration period. Always check passports for expiration dates and apply for a renewal passport at the earliest opportunity.
- Parents with pending child custody cases should first obtain a favorable order from the court regarding any foreign travel to avoid being stopped at the airport (port of exit).
- Make photocopies of the children’s passports and keep them with you in the event a passport is lost. This can facilitate applications for new ones in case of loss or renewal.
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