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BLOOD TESTS COULD HELP REAL MOTHER PETITION HER CHILD, EVEN THOUGH
CHILD'S BIRTH WAS REGISTERED IN LOLA'S NAME
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
When I was young, I got pregnant by my boyfriend.
I come from a very conservative family, so my mother had my child's
birth registered in her name to protect me as well as our family's
name and reputation. Even the hospital records and my child's
school records show my mother as the biological mother.
I eventually immigrated to the U.S., and became
a U.S. citizen. I desperately want to petition my child, but my
child's birth certificate and all her other papers show my mother
(the child's Lola [grandmother]), as the "biological"
mother. Is there any hope or chance that I could be able to petition
my child and bring her to the U.S. legally?
Very truly yours,
R.F.
Dear R.F.:
By law, whenever a parent petitions a child, the
parent (who is the petitioner) must provide evidence to the INS
of the parent/child relationship. The primary (or most reliable)
evidence in order to establish a parent/child relationship is,
of course, the child's birth certificate. The law provides that
when a birth certificate is not available, the petitioner
may submit "secondary evidence", such as a baptismal
certificate, church or school records, etc. If the birth certificate,
as well as "secondary evidence," are not available,
affidavits may be submitted. However, the lack of a birth certificate
creates a presumption that you are not the parent. Any
secondary or alternative evidence is thoroughly analyzed and investigated
by the INS for authenticity and credibility. As a possible last
resort (where the documentary evidence is inconclusive or questionable),
the family may wish to consider DNA testing.
If there are issues of parentage, the INS allows
DNA testing in certain circumstances, in order to establish a
claimed family relationship for petitioning purposes. When the
documentary evidence (such as "fixed" birth certificates)
does not establish a parent/child relationship, it could be possible
for the family members to submit to DNA testing, in order to prove
the actual parent/child relationship.
INS memos on DNA testing emphasize that the DNA
testing procedure must be strictly controlled and monitored, to
ensure that the testing is properly conducted. The DNA testing
can be conducted only by certain laboratories which have been
approved/accredited by the INS (i.e. you cannot just go to
any lab for DNA testing). Under no circumstance can the family
members be involved in any way in handling or transporting the
DNA test samples (which could either be blood or tissue samples).
This is to ensure that nobody "contaminates" the testing
procedures. These DNA test results must produce a 99.5% statistical
probability that the parties being tested are, in fact, parent
and child.
In your case, it appears that almost all the documentation
to prove that you are the mother has been altered to show your
mother (the child's Lola) as the biological mother. Therefore,
you may want to consider DNA testing, in order to prove that you
are the real mother.
Because of the complexities of the situation, I
would strongly advise that you seek the assistance of a reputable
attorney, who could work with you, the INS, and the approved laboratory,
to assure that the DNA testing is conducted per the requirements
and specifications of the INS, and that all appropriate people
undergo DNA testing. The fact that some documents were altered,
gives the Embassy more reason to look closely into your case.
The Embassy cannot be blamed for investigating further since you
lied before, and they want to be assured that you are not lying
this time. While there are no absolute "guarantees"
of success, I believe that, in your situation, DNA testing could
offer you the best hope of finally being able to petition your
child and bring her to America to be with you legally. Under no
circumstance should your mother attempt to petition the child
as her own, as that could be considered alien smuggling by your
mother.
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