Citizenship Registration for Foreign Born Children

American citizens often spend time overseas for job assignments, military deployments oriStock_000018512233XSmall sabbaticals.  On occasion, these extended stays will result in the birth of a child out of wedlock.  Where a child is born abroad and out of wedlock to a father who is a United States citizen, that child is a citizen of the United States from birth.  However, in order to register that child’s citizenship, certain requirements must be met:

1.  A blood relationship between the applicant and the father is established by clear and convincing evidence;

2.  The father had the nationality of the United States at the time of the applicant’s birth;

3.  The father (unless deceased) had agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years; and

4.  While the person is under the age of 18 years:

  • Applicant is legitimated under the law of their residence or domicile;
  • Father acknowledges paternity of the person in writing under oath; or
  • The paternity of the applicant is established by adjudication court.

An application process must be completed before a child born abroad can be registered as a U.S. citizen. The father must complete an Application for Consular Report of Birth Abroad and Affidavit of Parentage and Physical Presence to begin the registration process.

Once the child is registered as a United States citizen, the child is entitled to a United States Passport and a Social Security Number. In order to secure these documents the father must complete an Application for a U.S. Passport and Application for a Social Security Number.

The father must be physically present with the child and sign all of the above referenced forms, applications and affidavits in the presence of a United States Consular official in nation where the child was born. Additionally, documents supporting the above applications evidencing the child’s parentage and father’s nationality are required. These include the child’s birth certificate, father and mother’s passports and evidence of father’s physical presence in the United States including tax returns, supporting tax documents, pay stubs or employment contracts.

With each parent’s cooperation, this process can be straightforward and seamless, often being accomplished within days of the child’s birth. Yet questions arise as to how this process is accomplished when the father refuses to participate in the process.

First and foremost, a Custody Judgment must be established and entered with family court where the child is domiciled. The custodial parent will be granted rights to make the major decisions in the child’s life which traditionally include decisions regarding education, medical, religion and general welfare. If it is anticipated that citizenship registration is going to be an issue at the time of Judgment, it is imperative that the Custody Judgment reflect the custodial parent’s ability to make citizenship decisions for the child. While the lack of such language is not necessarily a prohibition against making such decisions, the more clarity and guidance an enforcing court can be given at the time of Judgment the smoother the enforcement process will be.

The next question is the venue in which an action can be brought to force the non-custodial parent to complete the citizenship registration. The court which entered the Custody Judgment has the opportunity to make this determination and compel the non-custodial parent to participate in the registration process. But if the non-custodial parent has returned to the United States by the time the issue arises, then it will be necessary to open a subsequent court action in the location where the non-custodial parent resides in order to enforce the Judgment against that parent. Under the Uniform Child Custody Jurisdictional Enforcement Act (“UCCJEA”), American courts do not have the authority to modify an overseas Judgment, but they do have the power to enforce such Judgments against non-compliant parties who reside within their jurisdiction. Thus securing an order to register citizenship in the home state of the child then enforcing that order in the state where the father resides is the logical and appropriate process.

But an additional consideration may be the willingness of an overseas court to deliberate on questions of American citizenship. A court of another nation may not find itself compelled to make a decision as to whether an American non-custodial parent should be obligated to register a minor child’s American citizenship. If that is the case, the best scenario for an applicant parent is to secure a ruling from the court that it does not have the jurisdiction to make a ruling on a question of American citizenship. A ruling that the court will not compel the father to complete the registration will put an end to the discussion and bar the applicant from seeking the same relief in the United States. However, a ruling that the court of the child’s home state does not have jurisdiction to make such a ruling will allow the applicant parent to come to the United States and sue the non-custodial parent in the jurisdiction where he resides even though that is not the home state of the minor child. The UCCJEA allows for such a suit if the court in the home state of the child does not have jurisdiction or declines to exercise such jurisdiction.

Our own family courts may be similarly hesitant to entertain questions of citizenship. This is not a topic they deal with on a day to day basis. However, the obligation to make a non-custodial parent complete such citizenship registration forms is no different than compelling such a parent to complete school enrollment forms or health insurance applications. Yet such educational and medical obligations are traditionally set forth with specificity in Custody Judgments, whereas citizenship obligations are not. Therefore, the best opportunity to enforce citizenship registration is to have the power to compel registration vested with the custodial parent in the original Custody Judgment.

 

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Jay P. Dahlin

About Jay P. Dahlin

Jay Dahlin is a partner with Schiller DuCanto & Fleck LLP whose practice concentrates on financially complex divorce matters and contested custody litigation. He has successfully tried numerous cases, winning custody and support for both fathers and mothers in Cook, Lake, DuPage and McHenry Counties.

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