July 13, 2009: Stepchild Petition Requirements

Stepchild Petition Requirements

I am English and married to an American citizen and I am a permanent resident. My daughter from a previous marriage moved to Florida with us 2 years ago, as she was not getting along with her mother in England. She is now 16 and I want to get her immigration done, I have been told I need a court letter from her mother giving me full custody. Her mother says she is 16 and she can choose who she lives with and is not going to go to court and give me custody. She will give me a signed letter saying that she is happy for my daughter to live here. Do I still need a court signed letter as she is now 16? If so is there any way around this as my ex wife is very awkward. Any help greatly appreciated!
— Rik

Generally, when two people get married, if either the husband or wife has children prior to the new marriage, those children become the step-children of the new spouse. Under the Immigration and Nationality Act (INA), the stepchild will be considered a `child’ for immigration purposes only if the marriage occurs before the child turns 18. In turn, the United States citizen stepparent must file an I-130 visa petition on the stepchild’s behalf before the child turns 21 years of age to accord the stepchild the benefits of a child under the INA. You will have to prove to the United States Citizenship and Immigration Service (USCIS) that you are in fact the father of the child by providing a certified copy of the child’s birth certificate.

You will need to provide the marriage certificate showing that the marriage creating the stepparent/stepchild relationship occurred prior to the child turning 18 years old and that all prior marriages were legally terminated. If the child was born out of wedlock and there is an issue regarding legitimization before the child is 18 years old, you may need to provide documentation proving your father/daughter relationship such as school records, medical records, church records, financial records, etc. From the facts presented, it does not appear that the laws regarding adoption and/or orphan petitions are relevant.

Furthermore, from the facts presented, it does not appear that a custody determination and/or a court order allowing the child to live in the United States are necessary. For more information, it may be wise for you to consult with an experienced immigration attorney to review your situation and properly advise you on how to proceed.

Michael Shane and Evan Shane, Immigration Attorneys