Who had custody

May 24, 2006 3:46 PM

Who has custody of children if it is not spelled out in the divorce?

My stipulated judgement of dissolution of marriage says nothing directly about who has custody - it just says that "the courts of the state of Oregon have exclusive jurisdiction to make custody determinations under the Uniform Child Custody Jurisdiction Act."
This has become significant because my ex-wife became a US citizen before the children were 18. I did not - I'm a resident alien. If we can show she had custody, or joint custody, they are citizens and can get passports. If not I need to get them naturalised, with the hassle and expenses that follow. Looking at the statutes (ORS 109.700 to 109.930) really hasnt made this any clearer to me.
Is there a presumption of joint custody if nothing else is specified?

posted by anonymous to Law & Government (7 answers total)

I think you're going to have to go see a lawyer for this one.
posted by BackwardsCity at 3:55 PM on May 24, 2006

Ditto what BackwardsCity said. For what it's worth, my gut tells me that there's no way the mother would be assumed not to have custody, and that joint custody is most likely. But only a lawyer who knows Oregon law can (a) tell you that for sure, (b) figure out how you might make that clear if you need to in the application process.

Have you tried just having them apply for passports and seeing what happened?
posted by kingjoeshmoe at 4:12 PM on May 24, 2006

If we can show she had custody, or joint custody, they are citizens and can get passports.

Are you sure about this? I'm pretty sure I became a naturalized citizen a few years after both my parents did (and I was less than 18 at the time).
posted by kickingtheground at 4:21 PM on May 24, 2006

If the kids were born in the US, then none of this matters, because they're citizens regardless.
posted by Steven C. Den Beste at 4:22 PM on May 24, 2006

In my experience the best place to get advice on this type of issue is a laywer. The second best (and also usually free) is the office of your local elected representative, such as your Congresperson. If you're lucky, they'll have a person who's whole job it is to sort out citizenship/refugee and passport issues.
posted by tiamat at 5:15 PM on May 24, 2006

Get a lawyer, find out for sure, however- when my now ex-husband was still my husband and merely informally separated from me, he took our son and moved to California without telling me. The police couldn't help because without judicial custody paperwork, we were considered equal custodial parents in the eyes of the law, and a custodial parent can't kidnap a child. When I finally managed to drag him back home after four months of legal wrangling, the courts awarded him custody because our son was very young and now used to being with his father, "continuity of care." So, anecdotally, if you and your ex-wife didn't have a custody agreement writ specific, my guess is, you're both custodial parents without prejudice.
posted by headspace at 4:59 AM on May 25, 2006

Make sure the new lawyer is better than the old lawyer.

IANAL, but FWIW, even my family law boss is stumped by that one. She has some guesses, but you really need a local lawyer.

Once again, I suggest shopping through the AAML.
posted by Sprout the Vulgarian at 7:34 AM on May 25, 2006