Sticky situation, dependent visa in-country?

I as most of you know, am here on a spouse visa. I do not have primary physical placement of my son, but due to some issues that have arisen, am going to seek a change in circumstances warranting a change in placement, so we will be primary instead. I posted it in the parents forum in case anyone wants to see.

Basically, what I need to know is if we were granted custody of my son, will we have to return to the US no ifs ands or buts, or can we change him from a visitor to a dependent on my visa in-country? I'd really rather not go to the US to get his visa for obvious reasons (ie cost, cost, and more cost, plus time off for my dh to watch dd as she'd stay here while ds and I went to get the visa).

Right now its very early stages as this all just came about yesterday, so I don't know if we will even need this info, but I can say if the courts disallow the change they are off their rockers. At some stage I imagine we will need to know as even if right now they wont do it, my ex will continue on his path of destruction until there is no other choice for the courts than to change the custody to us.

Anway, sorry to waffle, hopefully someone can answer this for me. Probably wont be what I want to hear, but I'm willing to do what it takes to keep my son safe.

TIA,

katrinA

The child needs an entry clearance that was issued with a view toward settlement. 

Limited exceptions.  Assuming that there was no on-entry declaration that returning to the US placed the child in danger or jeopardized the child's health, making the case for that (i.e., and in-country switch on compassionate grounds) will be more difficult now.  The challenge is basically to prove that the USA does not have the resources or capability to protect the child, and getting a local, state, or Federal government to admit that they are helpless to protect a child could prove somewhat difficult.  But perhaps not impossible.  Credibility would play a role also because spouses are maligning their ex's all the time.  Credibility could be undermined by your having defaulted on child support payments for example.  And after all that you have to clear Haig, which is a can of worms unto itself.  What this means is that an in-country switch is going to be complex and very exceptional.  You wouldn't even THINK about attempting it without instructing a heavy-weight.

Going through the US system to gain sole custody, or at least temporary wardship, and then obtaining an entry clearance should be seen as the path of least resistance, if not the only feasible way.  And propping up the application with suitable arrangements for the child's on-going care will help. 

The controlling references start at HC395 Paragraph 297 and go on for several paragraphs (http://www.bia.homeoffice.gov.uk).  Guidance for exceptional cases is at IDI CH8 S5 on the same site.  Additional material in the ILPA archives, but none bearing directly on the situation the way you have outlined it.

Bottom line is get to a practitioner in family law.

thank you, we're going to start talking to solicitors on monday....I figured the easiest/fastest but of course not cheapest route would be going to the US.

I'm going to assume that if I were awarded custody and then were to seek out the visa NY would be an acceptable place to get it? It would be a LOT cheaper to fly in and out from there rather than all the way to Chicago.

What sort of timeline would I need to operate on? I'd like to try to get the order ex parte to avoid costly fees flying/staying in the US esp since I have a young baby I'd need to leave behind while I go.

Not only that but my ex is mentally unstable...I'd rather not enter his 'territory' if I can help it as I do feel he would do whatever necessary to keep my from my son.