Can my daughter gain U.S. citizenship through my ex, her father?

Your daughter may have been a U.S. citizen at birth, but if not, the key will be to not have the new spouse adopt her.

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Question

I am from Denmark, where I still live. Some years ago, I was married to an American expat, and we had a daughter who is now eight years old. We divorced when she was still a toddler and he went back to the United States. I have since remarried and my current husband now treats my daughter like his own child. But I want my daughter to keep the option to immigrate to the U.S. when she becomes older. How can I make sure of this?

Answer

If you and your former spouse were married by the time your daughter was born, then there is a chance that she was born a U.S. citizen — assuming your former spouse was already a U.S. citizen and had lived in the U.S. or served the U.S. government abroad for at least five years (including two years above the age of 14). Under this scenario, you would have nothing to worry about, because your daughter would be unlikely to lose her citizenship.

If, instead, you and your former spouse got married only after your daughter was born, and he never committed in writing to providing financial support for her, then your daughter would have a hard time proving that she was born a U.S. citizen. Under this scenario, her best option would be to apply for a green card by first asking her natural father to petition the U.S. government on her behalf — preferably before she turns 21.

To help her maintain this option, you would need to make sure that her natural father’s legal rights as a parent are not terminated. Such termination could happen, for example, if your current husband (your daughter’s stepfather) chooses to adopt your daughter under the laws of Denmark. (Perhaps he, you and even your former spouse might decide that such adoption would be in the best interests of the child at a particular time.) If this happens, then your former spouse would lose the ability to petition for your daughter.

Nonetheless, even if your current husband has already adopted your daughter, but all relevant parties (depending on your daughter’s age) later on come to believe that it would be in her best interests to obtain a revocation of the adoption under the laws of Denmark, your daughter’s legal relationship with her natural father could perhaps be reestablished — though not automatically. A relationship can be reestablished for immigration purposes only in accordance with the laws of the country of adoption.

Therefore, you might want to consult an attorney familiar with the laws of Denmark to find out whether and how the relationship could be reinstated.

Also keep in mind that U.S. immigration officers could well deny your former husband’s petition if they conclude that the reinstatement was obtained solely for the purpose of obtaining immigration benefits for your daughter.

In any event, your daughter and her natural father would also be required to prove their initial father-child relationship — which, in their case, should require no more than her birth certificate plus your marriage and divorce certificates. (For more information on proving a father-child relationship, see Nolo’s article, “How to Prove a Parent-Child Relationship for Citizenship and Immigration Purposes.”)

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