Can Stepchildren Petition their Stepfather?26 April 2009
Dear Atty. Lou Tancinco,
I have been reading your article at the Philippine Daily Inquirer. I have some questions.
I am a 44 years old widow. My kids were born in New York City when my husband was holding a J1 visa as a medical resident/ fellow when he was still alive. He died 10 years ago. I am planning to get married again, if my new husband will adopt my kids who are now 16 and 13, will there be a any problem since they are American citizens? Can they still petition me and my new husband when they reach the right age?
A Doctor’s Widow
Dear Doctors Widow,
Adoption has the effect of creating a parent-child relationship with the adopted children. The adoptive parent will have legal responsibilities to the children when an adoption decree is granted by the appropriate judicial court.
The fact that the children were born in New York and are US citizens will not have any impact on the adoption by your future husband. The factors that are taken into account in adoption are the ability of the parents to perform their duties as adoptive parents and whether the best interest and welfare of the adoptive children will be served by the adoption process. The citizenship of the child will not be a major consideration as long as the biological parent gives voluntary consent to the adoption process.
When children of Filipino parents are born in the United States, they become US citizens by birth. However, as children of Filipino parents, the Philippines also consider these children as Filipinos. For this reason, these children are considered as holding dual citizenship.
For purposes of petitioning parents of US citizens, you have to wait until your child turns 21 years old before he/she can file a petition for you. As far as the petition for their stepfather, you have to marry him before the children turns 18 years old to establish the stepfather-child relationship for immigration purposes.
Under the Immigration and Nationality Act, a stepchild relationship will be created for purposes of immigration petition if the marriage creating the stepchild relationship occurred before the child’s 18th birthday and that at the time the immigration petition is filed, the stepchild relationship still exists.
Marriage Issues and Stepchild Petitions
Aside from the fact that the stepchild relationship is created before the child’s 18th birthday, it is important to note that the marriage must still be valid at the time the petition is filed and upon issuance of the immigrant visa.
If for some reason, the stepparent and the biological parent are separated when the petition is filed, the petition may still be approved as long as there is no legal separation or divorce that is filed. In addition, there must also exist a continuing family relationship between the stepparent and stepchild.
You indicated in your letter that you will soon re-marry. I assume that this marriage is a good faith marriage with the intention to build a life together with him and your two children. There are certain marriage issues which may be examined by the consular officers in determining whether this marriage is valid. You should be ready to show proof of a valid marriage during the interview process for the immigrant visa. The law is very clear that no immigration benefits may be conferred to your future husband if it is discovered that the marriage is a fraudulent and was entered into for immigration purposes only. This rule applies even if the US citizen children are innocent about the sham marriage and even if this marriage is not legally terminated.
Good luck and I hope that this information is helpful.
Atty., Lou Tancinco
*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her main office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808 or their Manila office at 887 7177; check their website at www.tancinco.com. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to firstname.lastname@example.org)