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Custody is not the issue before the INS.The issue is lineage. All you need to state is that you and your ex spouse are the biological parents of the children. You can also state that when the children were in the possession of a parent that parent was the custodial parent of the child. You can also state that each parent exercised possession of the child. If necessary produce a birth certificate.
Joint custody refers to decisions about raising the children, it does not infer equal time for possessing the children. Joint custody is a legal term used in Family Courts. It does not dissolve the relationship of a child to its parents. Only an adoption does that. if you share possession of the children after the divorce you can state that fact and you can state that both parents were involved in the upbringing of the children.
Here is the problem: When a child is a permanent resident , underage, and in the legal and physical custody of a parent who is becoming a US naturalized citizen the said child automatically becomes a US citizen. We are trying to prove that in 1989 my child was under my legal and physical custody when I became a naturalized US citizen.
Explicitly they are asking for the following:
"if only one parent was naturalized, please submit one of the following documents showing that you were in the physical and legal custody of that parent at the time of naturalization prior to your 18th birthday:"
a) a certified copy of a custody order; or
b)the death certificate of your non-US citizen parent.
I assumed that the decree implicitly gives both parents legal custody and, in addition I went after school records to show that he lived with me (physical custody) since we lived in a different state than their mother did. Certified copies of tax returns showing that I claimed him as a dependant could NOT be obtained because they are too old, but I did an affidavit. I am still struggling to prove the legal custody aspect....
The best you can do is submit a certified copy of the divorce decree that shows that you both had custody of the child prior to the divorce. The school records would show that they lived with you during the period post divorce. The divorce decree would also show that custody was not taken away from you and therefore you remained a custodial parent.
The requirement seems a little contrived. For example parents that are not divorced don't have custody orders. Similarly parents that have a spouse that abandoned the child don't have custody orders.
I would also ask the over 18 year old to submit an affidavit stating you were their custodial parent for the period after the divorce until they reached the age of majority.
You should include in your letter a certified copy of birth certificates showing you are the custodial parents.
A copy of the divorce showing that you are the parents and that custody was not taken away.
School records showing that the residence of the children was with you.
Affidavit from the children stating where they lived and that you were the primary custodial parent during that period.
If possible an affidavit from you ex indicating that you were the primary custodial parent of the children.
Your paragraph can reference all of these items.
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