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When it comes to the K-2 visa as well as the K-4 visa there may very well be the issue of child custody. This part of the US immigration process can become very complex. This is where there has been a child born outside of marriage, the process of child legitimation and those who are divorced in Thailand. When children are part of the K-1 process and the K-2 process then there are very strict immigration requirements in the process. Lastly there is also the CR-2 visa and the IR-2 visa as well.
The most common visa options in Thailand tend to be the K-1 visa as well as the K-2 visa for children. There is also the CR-1 visa and the adjoining CR-2 visa. When there are unresolved legal issues then this will become very pronounced in the visa process. Should there have been a divorce, who has child custody and what are the rights of the biological father of the child? What we will explore in this article is to show you about the child custody agreements in Thailand as well as how this affects her U.S. immigration applications. Parental consent is explained in more detail elsewhere on our website. Lastly also see the K1 visa questions interview examples on here.
When your Thai wife or Thai fiancée has children. Moving them to the US can become difficult. The most common children visas are the K-2 visa, K-4 visa, CR-2 visa as well as the IR-2 visa as well. You will note that one is for a fiancée while the other 3 are for those who are already married.
K-2 Visa: This is a children’s visa for those who have a parent who is engaged to get married when they arrive in the US. The K-2 visa is linked to the K-1 visa. The visa is depended on the approval of the K-1 visa. Should his/her mother be denied then the child visa will also be denied.
K-4 Visa: This is for the children where their mother is married to the American citizen, you. Their K-4 visa is linked to their mothers K-3 visa. Likewise this is operated the same as the K-1 and K-2 fiancée visa.
CR-2 Visa: These are for children whose mother holds a CR-1 visa. This is the conditional residency visa for couples married for less than two years. Much like the other children visas the children also have to meet the requirements for the CR-2 visa.
IR-2 Visa: This is the visa for the children of the IR-1 visa holders.
Likewise note that the legal requirements for the children visas also need to be met for all of these. There are also the significant challenges. This would be when the child’s biological father retains parental rights.
In order to explain the custody problems that do more often than not comes with immigration. We will give a very brief overview of child custody in Thailand. This will affect your US visa immigration application. Likewise lets start with divorce.
Mutual Consent Divorce: You will note that this is the most common type of divorce in Thailand. This is where both parties agree to the divorce and the terms of the divorce. Both parties agreed to the custody of the children and this should be in the divorce agreement. This is documented at the Amphur Office as it is a divorce by consent or unopposed divorce.
Contested Divorce: In Thailand this can become expensive and it is mainly for those who disagree about property or the custody of the children. In these matters it will be the courts who decide on the best interest of the children in the marriage. Likewise also see that any children you adopted will also be included as your biological children.
Irrespective of the type of divorce the law will always favor the welfare of the child or children. There will be a custody agreement and we explain this below that it can be sole custody or joint custody. This will be the issue of shared legal rights with joint custody or sole primary custody. For the US visa this becomes very important.
Under Thai law, child custody can either be legally assigned through a court judgment or mutually agreed upon between the divorcing parties. Custody typically falls into two categories:
Sole Custody: One parent (often the mother) retains full custodial rights over the child. This means that the parent has the authority to make decisions regarding the child’s health, education, and well-being without needing the consent of the other parent.
Joint Custody: Both parents share custodial rights and responsibilities, and both must agree on major decisions concerning the child’s life, including the possibility of international relocation.
When applying for a U.S. visa for the child, the type of custody agreement significantly impacts the immigration process. In cases of joint custody, obtaining the biological father’s legal consent is usually required for the child to emigrate.
The question is that is your Thai wife or Thai fiancée in need to the consent of the biological father. Will the child need to have the legal consent of the biological father? The US Embassy in Bangkok is going to ask for the legal consent to take the child out of Thailand from the biological father. Proof of legal custody will be needed and the divorce arrangement will also need to be shown.
When Consent is Required
These are the two most common cases. The sole custody and joint custody.
Joint Custody Cases:
Should your Thai wife or Thai fiancée share joint custody then US immigration will need to have the consent from the biological father to procedures. You are going to need the consent of the farther of the child. US immigration has to ensure that the change in location does not violate Thai law or infringe of the rights of the fathers custodial rights. Note that any documents will need to be translated likewise signed as well as notarized by a notary public in Thailand.
Sole Custody Cases:
Where the mother has sole custody this could also become complicated. If there is a court order then again you will need to have translated court documents as we as notarized by a notary public. This will be needed before you can proceed with the children’s visas. The Embassy in Bangkok may also want to ensure that there are no legal disputes that may complicate the departure process. Speak to our family lawyer on this if there has been a legitimation of the child of a single mother.
The following documents may be needed to complete the visa process. This can be for a K-2 visa, K-4 visa or the CR-2 visa or IR-2 visa. These are all US immigration visas for children who are coupled to the visa of their mother.
Divorce decree:
You will need to have the divorce decree with the court ruling on the custody agreement. The US immigration service will want to look at the issue of the custody of the child.
Legal custody order:
You are going to need to have the documentation should the Thai mother has sole custody. The US immigration service will need to have these documents as part of the visa application process. She will need to show that she is legally entitled to relocate the child.
Likewise where there is a joint custody over the child. Then the biological father’s signed consent for the child to leave Thailand is usually required. The consent must be translated into English, notarized, and submitted with the US visa application.
You could very well get a visa rejection should you not have all the needed documents. This could also come back at a Request for Evidence during the process which will cause a delay.
When it comes to taking children across international borders. There are also legal considerations in cases involving joint custody or disputed custody. This can can read about in the Hague Convention on the Civil Aspects of International Child Abduction. See the article that we wrote on here as both the United States and Thailand are signatories. The Convention seeks to prevent the unlawful removal of children from their home country without the consent of both parents or a legal ruling.
When immigrating to the US immigration service must ensure that the relocation of the child does not violate the Hague Convention. In joint custody cases, if the father claims that the child’s relocation would be an unlawful removal under the Convention, the visa application could be denied or delayed while the matter is resolved in Thai family courts. This is one reason why obtaining explicit legal consent from the father is crucial when joint custody is involved.
If a Thai mother attempts to relocate her child to the U.S. This without the father’s consent or in violation of Thai custody laws, the father may file a claim under the Hague Convention, which could lead to the child being returned to Thailand.
Child custody affects the status of the K-4 visa holder. This is connected to their mothers who is applying for a K-3 visa as well as the spouse of the US citizen. The K-4 visa runs parallel to the K-3 visa and is meant for children who are:
– The child is single as well as under the age of 21.
– Applying for the K-4 visa concurrently with the parent’s K-3 visa.
The K-4 visa allows the child permission to enter the U.S. Temporarily. This while they are waiting for the final approval of their parent’s immigrant visa or adjustment of status. Likewise once in the U.S., a K-4 visa holder may file for adjustment of status (Form I-485) to become a permanent resident.
Note that the same applies to the CR-2 visa which also allows the child of a Thai spouse (who holds a CR-1 visa) to enter the United States as a conditional resident. Much like other children visas, the child has to be single and under the age of 21.
– You have submitted the visa application along with the parent’s CR-1 visa.
– Likewise you have provided the documentation showing custody and, if necessary, consent
Lastly the CR-2 visa grants the child conditional resident status, which must be adjusted after two years along with the CR-1 parent’s visa. Additionally both the parent and the child will need to apply for the removal of conditions (Form I-751) to receive a permanent 10-year green card.
Note that the IR-2 visa is for the single status children who are under the age of 21. In addition it grants immediate permanent resident status to the child once they enter the United States. Unlike the CR-2 visa, the IR-2 visa does not impose a conditional residency period.
– The child must be under 21 years old as well as single.
Once granted, the IR-2 visa provides the child with immediate permanent residency without the need for a subsequent application to remove conditions.
Lastly the B-2 tourist visa is a non-immigrant visa for Thai nationals wishing to travel to the United States temporarily for tourism. The B-2 visa application process involves completing the DS-160 form, attending a visa interview, and providing documentation. Speak to us about children travelling with you.
Children will always be a complex issue. Speak to our Thailand divorce lawyer for assistance if you divorced and there are custody issues. If this is for s CR1 Visa then also see the CR 1 visa income requirements. Lastly also see how to fill out i-134 for K1 visa as well as the affidavit of support K1 visa.
