Wife fled to Canada. Has baby there. Paternity?

[cas8180]

Hello,

I will spare everyone the sad details of my story. But in a nutshell my wife left me and fled to Canada where she is originally from. We are still married at this time but in the process of a divorce. I am curious as to how paternity will be established if she has the baby in Canada. And if she will have any road blocks with this? Also I am curious as to whether or not she will be able to freely travel to the United states are not with this baby. On a side note I do have my concerns on whether its mine or not. I am also afraid to get a paternity test because I know at the point if it is mine then she will come after me for child support because that is all she really wants from me. Just my money. She knows that I am banned from Canada because of a DUI I got a few years back and can not enter the country. She just basically wants me to pay for a child that I will never get to see.

Thank in advance.

[Disagreeable]

Re: Wife fled to Canada. Has baby there. Paternity?

If the baby is born in Canada, she will be able to travel to the US with it under its Canadian citizenship. International child support/paternity is handled locally and coordinated through the Federal gov't CS office.

International | Office of Child Support Enforcement | Administration for Children and Families

[AFFA]

Re: Wife fled to Canada. Has baby there. Paternity?

I wish to inform you that as mother has taken child without your permission thus you may report matter to law enforcement and they may take steps for parental kidnapping. Further paternity is established with the child if child is born within marriage. In marriage a presumption is made that child belongs to father and thus if mother is your wife then your paternity with child is established and you can exercise your rights as a father.

AFF

[cas8180]

Re: Wife fled to Canada. Has baby there. Paternity?

I wish to inform you that as mother has taken child without your permission thus you may report matter to law enforcement and they may take steps for parental kidnapping. Further paternity is established with the child if child is born within marriage. In marriage a presumption is made that child belongs to father and thus if mother is your wife then your paternity with child is established and you can exercise your rights as a father.

AFF

I have read that the whole presumption of the child being the fathers in a marriage is dependent upon which state you live in. For example in California this applies. However in Nevada where I am from this does not apply. Are you saying this applies in Canada? And does it still apply if the marriage took place in the US in Nevada? I also did my research and spoke to several local attorneys to see if there was any criminal action or any legal action I could pursue against my wife as she did basically kidnap my child. However its a technicality because the child has not been born yet. So there is nothing that anyone can do. And she can basically get away with this scott free.

So I am in a situation where my wife abandoned me and our home as soon as she got her green card. I am stuck with this house and she is pregnant with my first and only child and I am about to miss the birth of my baby because she is in Canada. And every attorney I have spoken too basically says there isnt much I can do. And Canada will end up having jurisdiction over the child if it is born there and there is almost not way to share any type of custody with both of us living in two separate counties and me being banned from Canada.

[Disagreeable]

Re: Wife fled to Canada. Has baby there. Paternity?

On a brighter note, if she does not come back and live in the US she will be deemed to have abandoned the green card after a while.

[Guest]

Re: Wife fled to Canada. Has baby there. Paternity?

I don't know where you got your information OP but the husband is the presumed father in all 50 states and Canada (in many other countries as well).

It is a rebuttal presumption so once mom has the baby you can request DNA to get paternity disestablished (if it's not yours).

Right now there is nothing you can do about her leaving, except perhaps to try and woo her back.

[Friend In Court]

Re: Wife fled to Canada. Has baby there. Paternity?

I have read that the whole presumption of the child being the fathers in a marriage is dependent upon which state you live in. For example in California this applies. However in Nevada where I am from this does not apply. Are you saying this applies in Canada? And does it still apply if the marriage took place in the US in Nevada? I also did my research and spoke to several local attorneys to see if there was any criminal action or any legal action I could pursue against my wife as she did basically kidnap my child. However its a technicality because the child has not been born yet. So there is nothing that anyone can do. And she can basically get away with this scott free.

So I am in a situation where my wife abandoned me and our home as soon as she got her green card. I am stuck with this house and she is pregnant with my first and only child and I am about to miss the birth of my baby because she is in Canada. And every attorney I have spoken too basically says there isnt much I can do. And Canada will end up having jurisdiction over the child if it is born there and there is almost not way to share any type of custody with both of us living in two separate counties and me being banned from Canada.

The presumption of paternity if married is pretty universal throughout the U.S. As to Canada, you may assume the same under its Family Law Act. Although each province modifies and clarifies the Act, here are the statutes from

Alberta Province, Family Law Act Chapter F.4.5 Rules of Parentage, 7(8)(a) “Presumption of paternity

8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child\
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada
6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. R.S.O. 1990, c. C.12, s. 8 (1)



From Ontario, its Children's Law Reform Act;"

1. (1) Subject to subsection (2), for all purposes of the law of Ontario a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage. R.S.O. 1990, c. C.12, s. 1 (1)


Presumption of paternity
8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances
1. The person is married to the mother of the child at the time of the birth of the child
2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father
4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada
6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. R.S.O. 1990, c. C.12, s. 8 (1

The question of kidnapping is going to be impossible to successfully raise for a child yet to be born

The situation is that with her being a Canadian citizen, in Canada, presumptively to bear her child there, and you unable to even travel there, there is little you can do in the legal arena.


As to her being able to obtain support from you, however, that will be more than difficult [like impossible] with her and the child in Canada of necessity trying to serve you in the U.S. She would have to be in the US with the child in order to obtain a valid support order. She cannot obtain one against you from Canada.

Your best chance is to try to persuade her to return to the U.S.

[cas8180]

Re: Wife fled to Canada. Has baby there. Paternity?

As to her being able to obtain support from you, however, that will be more than difficult [like impossible] with her and the child in Canada of necessity trying to serve you in the U.S. She would have to be in the US with the child in order to obtain a valid support order. She cannot obtain one against you from Canada.

Your best chance is to try to persuade her to return to the U.S.

In regards to this statement wouldnt she just need to travel to the US as needed for this process? Or would she actually have to reside here? She has already threatened me multiple times that she is going after child support and pretty much wants nothing to do with me and plans on raising our daughter with her and her girlfriends.

[Friend In Court]

Re: Wife fled to Canada. Has baby there. Paternity?

In regards to this statement wouldnt she just need to travel to the US as needed for this process? Or would she actually have to reside here? She has already threatened me multiple times that she is going after child support and pretty much wants nothing to do with me and plans on raising our daughter with her and her girlfriends.

If she remains in Canada she and her girlfriend will have to count on themselves to raise the child. She will be unable to get court ordered support from you as long as you are served in the U.S. No Canadian court has any power to summon you to court for support or anything else, for that matter.

She would have to have the child in the U.S., in the state in which you reside in order to get a support order. The basic principle is that a court only has jurisdiction over individuals residing within its borders. As to child support, that is not just state but county specific as county superior courts have specific jurisdiction over children residing within the county.

Many people see judges as all powerful. Only within their territories, acting within the law. So no Canadian judge or court has any authority/jurisdiction/sovereignty over people residing outside of Canada.

Does that clarify?

[cas8180]

Re: Wife fled to Canada. Has baby there. Paternity?

If she remains in Canada she and her girlfriend will have to count on themselves to raise the child. She will be unable to get court ordered support from you as long as you are served in the U.S. No Canadian court has any power to summon you to court for support or anything else, for that matter.

She would have to have the child in the U.S., in the state in which you reside in order to get a support order. The basic principle is that a court only has jurisdiction over individuals residing within its borders. As to child support, that is not just state but county specific as county superior courts have specific jurisdiction over children residing within the county.

Many people see judges as all powerful. Only within their territories, acting within the law. So no Canadian judge or court has any authority/jurisdiction/sovereignty over people residing outside of Canada.

Does that clarify?

Yes it does. Thank you for her response. And I have been quite fearful of this because she seems very confident (and I believe her attorney has instilled this confidence) that if she has the baby in Canada. That because we were married in the US she will be able to claim child support. Because we have a divorce in process here in Nevada she is trying to raise this as a term/issue/demand.

[Friend In Court]

Re: Wife fled to Canada. Has baby there. Paternity?

Yes it does. Thank you for her response. And I have been quite fearful of this because she seems very confident (and I believe her attorney has instilled this confidence) that if she has the baby in Canada. That because we were married in the US she will be able to claim child support. Because we have a divorce in process here in Nevada she is trying to raise this as a term/issue/demand.

With a divorce petition pending in Nevada, if the petition seeks support and/or medical expenses, THEN the question of support is viable. It is not where you are married that is determinative, but where you divorce, where the support petition is pending, and whether or not both parties are subject to the jurisdiction of the court. In many cases divorce will be delayed until after the child is born. For there is too much of an unknown until after a full term baby is born. At any point the woman could miscarry. a child could be born with congenital defects that require extra expense. The child could be still born.

If the petition was filed in Nevada, custody and support was asked for -- then the picture is entirely different.

All will revolve around where the petition was filed, if both parties are subject to the court's jurisdiction -- who filed? Did the other answer? Was support an issue of the original petition? If not it can be amended upon the baby's birth.

Had you given the information that a divorce petition was pending in Nevada, my answer and others would have been different.

At this point you need to seek representation by a Nevada lawyer to guide you through the divorce with the issues that are pending now.

[cas8180]

Re: Wife fled to Canada. Has baby there. Paternity?

With a divorce petition pending in Nevada, if the petition seeks support and/or medical expenses, THEN the question of support is viable. It is not where you are married that is determinative, but where you divorce, where the support petition is pending, and whether or not both parties are subject to the jurisdiction of the court. In many cases divorce will be delayed until after the child is born. For there is too much of an unknown until after a full term baby is born. At any point the woman could miscarry. a child could be born with congenital defects that require extra expense. The child could be still born.

If the petition was filed in Nevada, custody and support was asked for -- then the picture is entirely different.

All will revolve around where the petition was filed, if both parties are subject to the court's jurisdiction -- who filed? Did the other answer? Was support an issue of the original petition? If not it can be amended upon the baby's birth.

Had you given the information that a divorce petition was pending in Nevada, my answer and others would have been different.

At this point you need to seek representation by a Nevada lawyer to guide you through the divorce with the issues that are pending now.

I saw my attorney this morning. And there are so many grey areas and jurisdiction issues in my case its really hard to see how it could play out. Right now I filed for divorce in August so right now nevada has jurisdiction over the divorce aspect of the case. My ex wife did not file for child support at this time nor had an amendment applied to her counter claim. So I guess that is one thing that is in my favor. Maybe her attorney just wasnt smart enough to bring this up. However she has told me in her emails which I have that her primary focus is going to be coming after me for child support. She wants that free money. She doesnt really care what happens with the assets in the divorce all she really wants in child support. I dont think its right that a person should basically be able to kidnap another persons child and then get rewarded for it, and that is what is ultimately is what is happening here and I am not sure how to properly defend myself .

My attorney contacted one of Canadian lawyer friends and he stated that basically if Canada gets jurisdiction that in Canada is it actually up to the child whether or not to terminate parental rights and because the child would be a minor there is really no way to get out of this so effectively I would be on the hook to pay child support for the lifetime of that child. All my ex would have to do is basically get her child support request granted by a canadian court and then she could have it enforced through some office here in the states ( I forget the name of the office my attorney mentioned).

My attorney also did say that because the divorce was filed in nevada that my ex could actually file for child support now so that when the baby is born she would be able to start collecting. I asked well if she can do that and Nevada has jurisdiction to grant that. Then does nevada also have jurisdiction to allow me to sign my parental rights over? She was unsure and didnt really have a clear answer. She told me she would need to do more research.

In the interim she told me that I can contact our local Attorney generals office. Because there have been some new laws that have passed that prevent a spouse from just taking a child out of the country of a divorce is in process and that. That spouse if proven that they were fleeing the country and actually be brought up on criminal charges of abduction. Again because my child wasn't not born yet I think she also falls into the grey area.

I feel completely victimized here and helpless and in complete despair as I feel that my ex wife is going to get away with stealing my daughter away from me raising it on her own and getting a thousand bucks a month from me for the next 18 years. What kind of world do we live in where this type of behavior is acceptable?

[Friend In Court]

Re: Wife fled to Canada. Has baby there. Paternity?

I saw my attorney this morning. And there are so many grey areas and jurisdiction issues in my case its really hard to see how it could play out. Right now I filed for divorce in August so right now nevada has jurisdiction over the divorce aspect of the case. My ex wife did not file for child support at this time nor had an amendment applied to her counter claim. So I guess that is one thing that is in my favor. Maybe her attorney just wasnt smart enough to bring this up. However she has told me in her emails which I have that her primary focus is going to be coming after me for child support. She wants that free money. She doesnt really care what happens with the assets in the divorce all she really wants in child support. I dont think its right that a person should basically be able to kidnap another persons child and then get rewarded for it, and that is what is ultimately is what is happening here and I am not sure how to properly defend myself .

My attorney contacted one of Canadian lawyer friends and he stated that basically if Canada gets jurisdiction that in Canada is it actually up to the child whether or not to terminate parental rights and because the child would be a minor there is really no way to get out of this so effectively I would be on the hook to pay child support for the lifetime of that child. All my ex would have to do is basically get her child support request granted by a canadian court and then she could have it enforced through some office here in the states ( I forget the name of the office my attorney mentioned).

My attorney also did say that because the divorce was filed in nevada that my ex could actually file for child support now so that when the baby is born she would be able to start collecting. I asked well if she can do that and Nevada has jurisdiction to grant that. Then does nevada also have jurisdiction to allow me to sign my parental rights over? She was unsure and didnt really have a clear answer. She told me she would need to do more research.

In the interim she told me that I can contact our local Attorney generals office. Because there have been some new laws that have passed that prevent a spouse from just taking a child out of the country of a divorce is in process and that. That spouse if proven that they were fleeing the country and actually be brought up on criminal charges of abduction. Again because my child wasn't not born yet I think she also falls into the grey area.

I feel completely victimized here and helpless and in complete despair as I feel that my ex wife is going to get away with stealing my daughter away from me raising it on her own and getting a thousand bucks a month from me for the next 18 years. What kind of world do we live in where this type of behavior is acceptable?

First of all, child support cannot be filed for until the child is born. Further, if she remains in Canada, she cannot file for support up there and obtain personal jurisdiction to compel you to do anything.

In order to get a valid support order, she would have to amend her petition or response to yours (whoever filed first) to ask for support once the child is born. You will be facing an uphill battle with the AG's office because as of yet the fetus is not considered a child. If she chose to leave the country, her choice would be to abort the fetus and leave it with you.

The fundamentals of jurisdiction apply. A Canadian court has not power over you with its process. Period. Only the jurisdiction where the child resides has any authority to order support. And then due process principles apply which supercede all other laws -- notice and a meaningful opportunity to defend. You cannot even enter Canada. How would any judge get enough of your financial records to make a fair adequate order for support?

As to her amending her Nevada petition, Nevada law, as other states, gives specific jurisdiction to rule on a child's welfare to the county in which the child resides.
If she remain out of the country, she forfeits the right to ask a Nevada court to make a support order for a child it has no jurisdiction over.

People can get orders from other countries. But to enforce them in the U.S. the order must be made in comport with US principles of due process and be made legally. To this day no Canadian court has any sovereignty (authority, power) over someone residing in and only served with process in the U.S.

Not all attorneys have experience in international and/or jurisdictional matters. If you need further information, do post me back up and I will send you the authorities.

[cas8180]

Re: Wife fled to Canada. Has baby there. Paternity?

@Friend in court

Did you by chance get my private message? I was waiting a reply but then I went to my sent box and nothing appeared in there so I was wondering if it even went through?

[cas8180]

Just an update for a anyone in a similar situation. My ex wife had the baby in Canada. I still don't even know its name. She has also moved to ask for the chuldt custody and support jurisdiction be held in Canada since that's where the child was born and resides. My attorney assures me that because of this Canada will have no jurisdiction over me and will not be able to enforce anything and this will end up costing my ex thousands of dollars just to try and fight it. Karma.