dad wants to move, take son to brazil
Posted on June 12, 2016
Dad wants to move, take son to Brazil
Q. I was born and raised in Brazil. I met my wife - a U.S. citizen - while going to college in Massachusetts. I have a green card. We married in 2009. Our son, Aloisio, was born in 2010.
Because my wife then worked two jobs and I worked a night shift, I became and still am Aloisio’s primary caretaker. Aloisio has attended pre-school, kindergarten, and has been introduced to the local grade school he’d attend next September.
Because I’ve only spoken Portuguese with Aloisio, he’s able to communicate with my Brazilian relatives and friends. Since his birth, I’ve taken Aloisio to my family’s Brazilian home every other summer. My wife came on one such trip, but stayed in Brazil for two weeks.
Because she was struggling with her alcoholism, I filed for divorce and to remove Aloisio to Brazil. There I have a family support system and a better job in a family-owned business. In any event, I have to move to a far less expensive apartment.
My wife argues Aloisio needs her in his life, she’s gone to daily Alcoholics Anonymous meetings for over a year during which she had only a few drinking binges, and, while she has a steady low-paying job, she can’t pay for trips to visit Aloisio in Brazil.
The guardian ad litem said Aloisio loves and is emotionally attached to both parents. He needs stability by having both parents care for him and by staying in the same school with the same friends, etc., so, I should not be permitted to remove Aloisio to Brazil.
The pretrial judge said that, if my wife proved those facts, he would probably grant me primary physical custody of, but might not allow me to remove Aloisio to Brazil. And, if I moved to Brazil, Aloisio’s primary physical custody would automatically change to my wife.
Wouldn’t that order violate the U.S. Constitution?
A. The Fifth and Fourteenth Amendments to the U.S. Constitution require you have due process of law before you can be deprived of the right to travel. But here, no one is stopping you from going wherever you want.
Before you can take Aloisio with you, the judge must consider, weigh, and balance: Aloisio’s best interests; the impact a denial of your removal request will have on your right to travel; and your wife’s rights and ability to continue her important relationship with Aloisio.
Simultaneously with your move to a less expensive apartment, Aloisio will lose familiarity with that apartment and be enrolled in a new school. So he’ll also lose contact with his current friends.
You need to find, hire, and give all the facts to a
lawyer who has tried a few removal cases to completion.
Once you know your win-lose percentages, you can better
chose which fork in the road to travel.