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QUESTION: Why would an American man be upset? Because the American woman does not want to respect the American father’s parental rights of her child, she gives birth outside the United Sates in another country (example Bahamas, Japan and Mexico)?

Anna Nicole Smith and The Legal Rights of Unborn Children

March 11, 2007

MSNBC News legal analyst, NYC lawyer Lisa Beth Older, Esq., appeared on MSNBC News Saturday and Sunday, raising novel concerns regarding Anna Nicole Smith and the legal rights of unborn children that go to the heart of what is on everyone's mind.

Upon the death of Anna Nicole Smith, and with the parentage of Dannielynn in balance, New York City MSNBC and ABC News Lisa Beth Older, Esq. addressed a serious loop hole in State laws which leave the question of the rights of unborn children to the potential capriciousness of other foreign countries. This breaking news angle on Anna Nicole Smith and the right of unborn children and viable fetuses has the world pondering the fate of Dannielynn and the human rights of all unborn children. Custody, paternity and DNA testing needs to be addressed in these cases as well as in the case of Anna Nicole Smith.

Foreseeing the problem of parental kidnapping of children and forum shopping for custody, paternity and DNA testing results, most States have already adopted UIFSA, the Uniform Interstate Family Support Act, and the UCCJEA, the Uniform Child-Custody Jurisdiction and Enforcement Act, and both sets of laws provide State courts with the power to determine paternity and custody where there is more than one state involved, such as where one parent kidnaps or brings a child across state lines. The laws rely upon the notion of "home state" jurisdiction, which is defined as the Court located where the child is born or has lived six months prior. If Congress does not act to expand the time of "home state jurisdiction" to include the time of pregnancy; a change from six months to fifteen months, and if UCCJEA and UIFSA is not amended Lisa Beth Older argues that the unborn child is potentially deprived of knowing their biological parents and asserting US citizenship.

The UCCJEA fails to safeguard unborn fetuses conceived in the United States. The National Commission has reported to Congress that the Bahamas is currently listed as a country of concern as a country that doesn't act on applications and abide by the rules of the Hague convention for the return of abducted children to the US.

Lisa Beth Older argues that Howard K. Stern, and others like them under the prevailing law, may be encouraged to leave the United States in order to legally circumvent United States law governing paternity and Custody, laws which rightfully give preference to the biological father under the US Supreme Court decision of Stanley v. Illinois. If a child like Dannielynn is conceived in the US but brought to the Bahamas, then it is up to the biological father to rebut the presumption of legal parentage by requesting discretionary blood testing.

In the Bahamas, Lisa Beth Older says, the law presumes that legal parentage and custody and paternity, is in the man who cohabits with the pregnant mother for a significant time and enters into a voidable marriage. This is to the detriment of the biological father and to his unborn fetus. If the Bahamas does not order blood testing on Anna Nicole Smith's the unborn child the child may never know her biological parent. An unborn child has the fundamental human right to know their biological father, and to allow people, such as Howard Stern, to remove an unborn child from US jurisdiction not only sets bad precedent but also encourages other pregnant woman and their friends to flee the United States in an arbitrary effort to defeat the fundamental human rights of all biological fathers and unborn children throughout the world. As such in the ultimate analysis Larry Birkhead has an uphill battle at this point.

Courtesy:  http://www.nycdivorcelawyer.net/nyc_divorce_articles.php?entry_id=204

ANSWER: I thought I had answered this but must have missed it.  Since it is very similar to the others I can say that any father who feels that his paternal rights have been compromised and reduced to practically nothing for 18 years has a right to be very upset.  it's unfortunate that he did not know enough about the mother before before she got pregnant as well as had not planned for this kind of consequence. If there is some way to get to know each other and trust that you will each respect the others rights in an effort to eliminate the fear of "stealing" the child but instead can find a way to just be good, loving and supportive parents even if apart and not married.  Lawyers can give you advice that is true, but they can also bring about unreasonable fears that build mistrust instead of finding ways to learn to trust each other. Work on your relationship, spend money and time there instead of lawyers.

Marcos

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QUESTION: Why would American man has his American mother be upset? He got a Japanese women pregnant in the United States. When she was pregnant with his child she travels to Japan by airplane. He knows that he will never be allowed to see his daughter before she turns 18 by the Japanese mother and Japanese police. He got a copy of his daughter Japanese birth certificate, she he knows that she exist. His mother can only see picture's of her grand daughter that are taken by a private investigator in Japan.

ANSWER: A tragic and very sad situation, especially for the child.  what is it with people that screw around then get pregnant without thinking what's going to happen next?  After the child is born?  So obvious that they never developed a real relationship based on trust an honesty.  

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QUESTION: Because her daughter is born in Japan and will not visit the United States before child custody ends at age 18, in order to legally circumvent United States law governing paternity and Custody, laws which rightfully give preference to the biological father under the US Supreme Court decision of Stanley v. Illinois.

The system instead favors a "clean-cut" approach, in which the non-custodial parent disappears from the child's life as if that parent never existed, international family lawyer Jeremy Morley said.

"The idea of both parents being involved in raising the child is foreign to the Japanese culture," Morley said. "There's been no historic role for both parents being involved, and the legal system makes no provision for any kind of visitation rights."

Japanese judges also demonstrate a clear bias toward awarding their citizens full custody in international divorce cases, he said. Children born in the United States automatically have Japanese citizenship if one of their parents is Japanese.

"A Japanese court will never give custody to a foreign parent," Morley said. "If the child is a Japanese national, the system will only see it as his right to be raised in Japan. They will feel it would be extremely unfair to a child to deprive him of the opportunity to live in a wonderful place like Japan."

Abductors, including parents violating court orders, face up to three years in prison and $250,000 in fines under U.S. federal law, plus state prosecution. Japan does not recognize abduction by a family member as a crime. Japan remains the only Group of 7 nation to abstain from signing the Hague Convention on international child abduction, rendering the U.S. powerless to extradite Japanese citizens charged with violating U.S. courts' custody rulings.

http://www.international-divorce.com/abduction-policy-japan.htm

Notes on the Issue of Child Custody

1. Recently, as a number of international marriages has increased, there have been cases in which one parent, whose marriage has faced a difficulty and who has a different nationality from his/her spouse, takes his/her child back to his/her home country against the law of country of residence. Such cases have raised concern, and the following points regarding the child custody issue should be noted.

Q. What is the issue of child custody?

According to the U.S. and Canadian laws, taking of a child by one parent without consent of his/her spouse is considered to be a serious crime (abduction of one’s true child) when both parents have custody (parental right)1. For example, if a Japanese parent living in Canada takes his/her child back to Japan without consent of his/her spouse, he/she breaches the Canadian criminal law even if that parent is the true father or mother of the child. When such a parent reenters Canada, he/she could be charged with a crime (there actually have been cases where parents are accused of committing a crime). It is necessary to be aware of such laws when one marries a non-Japanese and takes a child that one has with the non-Japanese spouse back to Japan.

Q. What is the Hague Convention (Convention on the Civil Aspects of International Child Abduction)?
In 1980, the Convention on the Civil Aspects of International Child Abduction was adopted in order to prevent illegal and transnational abduction of children (As of September 2008, there are 81 signatory countries). Japan has started considering the possibility of entering the Hague Convention. A signatory country of the Convention is obliged to make an effort (unless there is an exception stated under the Convention) to have an abducted child promptly returned to the countries where he/she was originally living in, based on a claim made by a parent whose child was taken away illegally. After the child’s return, a dispute over the custody of the child between the parents will be determined at a court in the country that the child was originally living in. As a result, since the Convention sets the rules concerning the return of a child who is abducted illegally, a child, who is brought to Japan according to the laws and procedures of a country that the child was living in, will not be forced to return to that country.

2. Regarding the application for Japanese passports of minors, Japan issues passports by having a signature of a custodian as a legal representative to the application form. However, if the other parent has expressed his/her disagreement on the issuance of the child’s passport to the Embassy of Japan or Consulates General beforehand, the passport will usually be issued after the verification of the consent of both parents. In this verification process, the Embassy of Japan and Consulates General check with the parent who disagreed beforehand on the issuance of child’s passport whether he/she is now willing to submit a “Letter of Consent for an Application of Passport.”

In the United States, taking a child abroad without consent of his/her spouse who has custody may be accounted to criminal liability (Please see the National District Attorneys Association). In fact, there are cases in which parent taking a child was arrested of child abduction when he/she reentered the United States, or that parent was placed on the international wanted list of International Criminal Police Organization (ICPO). To prevent Japanese citizens from such disadvantages, the Embassy of Japan and the Consulates General are checking verbally to confirm the existence of agreement of both parents on the application for child’s passport, even if there is no declaration of disagreement from one parent.

1. In Canada, kidnapping of a child under 14 years old is sentenced to penalty of 10 years or less imprisonment (Sections 282 and 283, the Criminal Code of Canada). In the United States, kidnapping of a child under 16 years old is either subject to pay a fine or sentenced to penalty of 3 years or less imprisonment (or both) (Federal Law Title 18, Chapter 55, Section 1204). Some state laws prescribe rules that are different from the Federal Law. Please refer to the websites of United States National District Attorneys Association (http://www.ndaa.org/pdf/parental_kidnapping.pdf) and in Canada, the Foreign Affairs and International Trade Canada (http://www.voyage.gc.ca/faq/child-abductions_enlevements-enfants-eng.asp) for details of the laws pertianing to child abduction and custody issues.

http://www.vancouver.ca.emb-japan.go.jp/en/passport/child_custody.htm

Answer
I believe that the questions you are asking, "Because her daughter is born in Japan and will not visit the United States before child custody ends at age 18, in order to legally circumvent United States law governing paternity and Custody, laws which rightfully give preference to the biological father under the US Supreme Court decision of Stanley v. Illinois" is not really a question and seems not to apply to you persoanlly, I will no longer accept any more questions from you.

Have a good day,

Marcos Torres

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Marcos Torres

Expertise

I can answer many questions regarding child development, best practices in child care and the fathers role in his children's development.

Experience

10 years as a child protective services investigator, 10 years administrator of a residential nonprofit program for developmentally disabled adults and children, 2 years working with parents facilitating a parenting group of first time parents with my wife using the MELD curriculum in the early 80's. Co-wrote and Administered a fatherhood grant working with young fathers and incarcerated fathers. Ran a fatherhood program in a Texas State jail and was Director of Incarcerated Programs for the National Fatherhood Initiative for a year and a half. I also raised two children now 22 and 26 who have excelled academically which I believe is from our learning the best practices in child rearing from the start.

Education/Credentials
BA in Social work in 1980 from New Mexico State University

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