Key Facts: Visa Expiry: My H-1B visa expires on February 13, 2025, and I must leave the U.S. to avoid unlawful presence. My spouse’s H-4 visa, tied to mine, also expires on the same date, but she does not intend to leave the U.S. A U.S. court order prevents either parent from taking our child out of Connecticut, but as her primary caregiver for the last 13 months, I cannot leave without her. Dual Proceedings: I filed for divorce in India under cruelty in Nov 2023 (Hindu), and my spouse has filed for restitution of marriage, custody, and maintenance there and participated in proceedings till Sep 2024 She also filed for divorce and custody in the U.S. upon arriving with just four months left on her visa. The U.S. judge seems inclined to retain custody jurisdiction while delaying the motion to dismiss the divorce case. My spouse has supervised visitation orders in both jurisdictions. Financial Constraints: I am under immense financial pressure, fighting cases in both countries, while also paying $20,000 lump sum and monthly maintenance per U.S. court orders. Questions: How can I request relocation with my daughter to India given my visa constraints and caregiving role? How do I address dual proceedings to avoid conflicting judgments and financial strain? What legal options do I have if the U.S. court does not permit relocation and my visa expires? How do I address the judge’s bias, particularly regarding unsustainable financial orders and the suggestion to extend my spouse’s visa, which is illegal? What can be done from India to compel her to come to India? What are my options if the judge does not listen, should I reach International court of Justice, I have limited time
Inform court that your visa is expiring in February 2025 and you cannot stay in USA legally and be permitted to take child to India
2) since marriage solemnised in India divorce should be on grounds recognised by Hama
3) in India’s file application seeking stay of divorce proceedings in USA
4) you can file appeal against maintenance order
On Informing the Court About Visa Expiry: How can I frame my motion to the U.S. court to maximize the chances of being granted permission to take my daughter to India, especially given the custody order prohibiting relocation? Should I emphasize my inability to provide for my daughter due to loss of income, health insurance, and other benefits if I remain in the U.S. after my visa expires? If the court denies my request, what are my legal options for ensuring my daughter’s custody and care while I am forced to leave the U.S.? On Divorce Jurisdiction Under HAMA (Hindu Marriage Act): How can I convince the U.S. court that HAMA should govern divorce proceedings since our marriage was solemnized in India? The Judge here does not give a shit about HAMA, already mentioned On Filing an Application in India to Stay U.S. Divorce Proceedings: What are the key legal arguments to include in an application in India to seek a stay on U.S. divorce proceedings? Also would that stay the maintenance orders as well How does the anti-injunction I filed in India help my case? On Appealing the Maintenance Order: How strong is my case to appeal the U.S. maintenance order based on: My inability to pay due to visa-related income loss. Existing maintenance claims in India. Should I argue that the maintenance order violates the principles of comity of courts since similar matters are already being litigated in India? General Questions: How can I manage dual proceedings more effectively to reduce financial and emotional strain? What is the best way to demonstrate to both courts that I am acting in good faith and in my daughter’s best interests? If my spouse overstays her visa after February 2025, how could that affect the custody and divorce cases?
Since you have already filed divorce case in India, you may produce the same before US court in the divorce proceedings filed by her and inform court that as you have filed the divorce case in India, the US court cannot try the divorce case in US which is not having jurisdiction.
Besides you can file the copy of her RCR petition stating that she is playing fraud on both Indian as well as US court wherein she filed a contradicting divorce in US.
You can also state that since your Visa expires in Feb 2025, it will not be possible for you to continue to pay her the maintenance nor you can remain physically present in US to comply with the child care to, hence to dismiss her cases and permit you to take the child to India.
In India you can file a copy of her divorce case in US in the RCR case and get it dismissed.
You should take the plea that on expiry of visa you cannot legally stay in in USA and have to relocate to India
2) if court rejects your application then file appeal against imagined order
3) court will pass orders for divorce but said divorce decree would not be valid in India
4) in India take the plea that marriage is solemnised in India and divorce should be on grounds recognised by HMA and petition filed in USA for no fault divorce law s not maintainable
5) maintenance should be appealed on grounds that because of loss of income unable to pay maintenance amount ordered
In US court you file a petition seeking permission to take your child to India since your Visa expires and that you are the primary care taker, hence the child's care taking will adversely impact in your absence in US.
Once you are in India, better concentrate on the cases going on in India alone, ignore the US case once you have returned to India.
The exparte decision by US court cannot be enforced in India.
If the US court does not allow my child to be taken out, what would be my course of action? Both Indian and US courts are aware of dual proceedings, the US court has not passed any judgement on divorce, awaiting Indian courts direction? Also it has awarded temporary pendente lite citing pending Indian court's decision. The judge says it will focus on child custody as she was born in US? My major concern is to get out of US, if I am out of the country and move to India with my daughter, the court can issue warrants and confisticate my property?
You can file a child custody case in India and show the papers before US court to prove that you have already taken steps to get child custody in Indian court, this may put a hold of any decision by US court in this regard.
If the child is US citizen then the US laws for child custody or support will prevail, you may have to fight on the basis of primary care taker only.
The US court cannot attach your property in India neither it can issue warrant to arrest you in India.
File appeal against order rejecting your custody application
2) sell your property in USA then come to India
They cant extradite me out of US
Follow-Up Actions and Questions Inform the U.S. Court How can I structure my relocation request to emphasize both federal compliance and the child’s best interests? Would providing alternative visitation options (e.g., virtual or in-person visits in India) strengthen my request? Maintenance Orders How do I appeal the U.S. maintenance order while highlighting financial strain and duplication of claims in India? Dual Proceedings Will filing a stay application in Indian courts delay U.S. proceedings effectively? How do I counter forum shopping claims in U.S. courts and strengthen my position that India has primary jurisdiction? Enforcement of U.S. Orders in India What specific steps can U.S. courts take to enforce custody or financial orders in India if I relocate with my daughter? Selling Property Should I sell my U.S. property now or retain it until there is greater clarity in the proceedings?
Why should you be extradited ?
You can provide virtual access to spouse
2) consult a lawyer in USA for filing appeal against maintenance orders .take the plea that you are unable to afford high maintenance as you have lost your job and wife has also initiated parallel proceedings in India
3) sell property now
4) since marriage is solemnised in India divorce should be on grounds recognised by HMA
5) if you have no property in USA difficult to enforce US court orders
I mean since my daughter is a US citizen the court could confiscate my bank accounts and issue warrants to get her back. Thats my worst fear, in case the motion filed by my lawyer havent been heard and I have to leave for India one because I need to leave 1 month early (Jan 10th) to be able to try to procure a VISA or job in India to support my family. Also I have a court date in India on Jan 13th. My greatest worry is if they force my daughter back
Act per your US lawyer advice
don’t keep much funds in your bank account in USA
On expiry of your Visa you may not be permitted to stay in USA, you may have to make arrangements accordingly.
You better decide not to respond to US court proceedings because you have planned to leave USA before the expiry of your Visa and not having any plans to return to USA immediately.
Besides you are having the copies of the proceedings going on in India, nothing prevents you from filing them before US court to inform them that similar proceedings are going on at a different country.
The Indian court has no jurisdiction over US court to stay the proceedings going on in that country.
If it is possible you may sell your US property before the US court takes steps to recover the amount by selling your property.
If it is possible you can close your bank account in advance and take your child to India.
Only on a petition filed by your wife about the child taken away to India they may pass an order, which she has to execute again in a court in India which will take long time.
You may take a decision patiently instead of getting anxious over it.
Relocation Request:
Dual Proceedings:
Maintenance Appeal:
Custody Plan:
Assets:
Spouse’s Overstay:
Enforcement in India:
Urgent Action:
Dear Client,
In the Present Scenario, in order to request for relocation with your daughter to India, it is necessary that you file a motion to relocate in the US Court, citing the required documents such as visa expiry details, your inability to remain in the U.S. legally, the care you give to your child, and what would be in the best interests of the child, i.e., to relocate. With respect to addressing dual proceedings, you may request the jurisdictional priority in India since you filed for divorce under the Hindu Marriage Act months before your spouse filed in US, and thus, on this basis argue for dismissal of the case in US. However, if the request of relocation is denied, and further your visa also expires, you may return to India, to avoid the illegal presence in the country, and seek for temporary custody orders. Further, you may also request the Indian Courts to issue summons for compelling your spouse to return to India, and for the same, international conventions may also be considered. In case the country in not cooperative on this, you may also approach ICJ, an International channel, to handle the dispute.
Hope you find this answer beneficial for resolving the dispute.
