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 Post subject: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 12th, 2012, 12:50 pm 
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Joined: October 24th, 2011, 8:53 am
Posts: 202
The line is GGF -> GF -> F -> Applicant/D. Consulate is Boston.

We cannot locate a birth certificate for GF. We have death certificate, marriage certificate, SS (Numident File), military records, census records, etc., but NYS Delayed Birth Certificate Division (a Mr. Martinez) told me that NYS does not issue delayed birth certificates for deceased people (GF died in 1966), even pursuant to court order. The marriage and death certificates state GGF and GGM as the mother and father, as does the census records.

This may be the end of line for us, which is a pity because there is plenty of secondary material that would confirm the date of birth and the parents, but not the birth certificate.

As a last effort, does anyone have a citation to the NYS laws governing birth certificates, so we can check if it is possible to force creation of a birth certificate? NYS Vital Records told me no, but I got the distinct impression all this corrections, etc. was a great nuisance to the work efforts.

Thanks much.

Patrick


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 12th, 2012, 3:10 pm 
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Joined: November 8th, 2009, 7:01 am
Posts: 276
http://public.leginfo.state.ny.us/LAWSS ... ARGET=VIEW

http://public.leginfo.state.ny.us/LAWSS ... ARGET=VIEW

http://public.leginfo.state.ny.us/LAWSS ... ARGET=VIEW

Am not sure whether or not these links offer any help. I do recall my attorney informing me that it wasn't possible to have a delayed record created for a deceased person. Somehow, she was able to convince the state to do just that.


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 12th, 2012, 5:06 pm 
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Joined: May 21st, 2011, 8:08 am
Posts: 250
Location: New York
Don't give up just yet.

First off, ask Ms. Martinez to put in writing what she just told you. It is no different than the NYC Municipal Archives telling everyone they can not amend records once they arrive at their building. The Archives will put that fact in a letter which the NYC Consulate will accept. If the toughest consulate in America will accept such letters, Im sure Boston will accept a similar letter from NYS.

Next, you wrote in another post you had to get a Declaratory Judgment...so as part of that petition put in the fact that your GF was never issued a birth certificate and NYS will not issue a delayed one, but the facts are as follows, listing where he was born, etc..
I had a similar situation as my GF was never issued a birth certificate. However my GF was born in another state and at the time I submitted my petitions, I wasn't sure if this other state would issue a delayed certificate (which they eventually did)...so I put the facts of my GF's birth into the declartory judgment which the Judge approved. So when I go to the consulate for my interview, I hope to have the delayed birth certificate as well as the declatory judgment.

When things look bleek, it is then when you just have to get creative.


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 12th, 2012, 5:13 pm 
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Joined: May 21st, 2011, 8:08 am
Posts: 250
Location: New York
If you check out the last link that Vittoria posted in regard to Delayed Birth Certificate, the law does not seem to make any mention of a time limit of when a birth certificate can be issued. Sounds to me like it is just another one of civil servants making up rules as they go along


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 12th, 2012, 7:37 pm 
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Joined: October 24th, 2011, 8:53 am
Posts: 202
Thanks to all.

After reading the law that vittoria (thank you v) posted, it seems clear that Mr. Martinez was pulling the old "bureaucrat bamboozle;" talk like you know what you are talking about and hope the nuisance goes away. There is clearly a requirement that the NYS Commissioner of Public Health create a birth certificate where there is none, and we intend to pursue that directly, and, if necessary, through the courts.

With that, our plan is to tidy up the secondary documents: birth and marriage certs, gather as much of the identifying information as we possibly can and then send in the application to the Commissioner. Anyone have anything to add.

The fight goes on!

Patrick


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 13th, 2012, 5:23 pm 
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Joined: June 10th, 2009, 9:27 am
Posts: 1061
Location: Rapino (CH) & Delray Beach, FL
Patrick, The "tell" in Mr. Martinez's statement is "Even with a court order." I can assure you that the employees of the department of health will obey ALL court orders


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 13th, 2012, 6:24 pm 
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Joined: October 24th, 2011, 8:53 am
Posts: 202
CPA21, you are reading my mail!

After thoroughly reading the NYS Public Health Law, we intend to apply for a court order to issue the birth certificate (the court order for issuance of birth certs is a legal requirement PHL §4174), and thereby force the creation of one pursuant to §4175. We would have to apply for a court order to obtain the birth certs anyway so it really isn't much of an inconvenience. The law is crystal clear that a birth cert needs to be produced, and, if not recorded, created, if the request is for a "legal or other proper purpose." Why waste time trying to push a rock out of our way (Mr. Martinez has made his position clear) if there is a cleaner way to do it. I don't see how NYS can escape the legal requirement to create a birth record, if there is reasonable proof for the birth, which there is--my wife is living proof! As an aside, I will say that is close to a disgrace that certain people at NYS Vital Statistics are creating rules in direct violation of the applicable statute, not to mind the legal liability Mr. Martinez and others like him are undertaking (in absolute ignorance, probably).

I note here for the benefit of forum participants that there is specific language that must be contained in any court order so as to obtain the long-form certificate required by Italy. See PHL 4174(1)(f), and anyone in this process needs to pay attention to this provision, which seems specifically targeted to the dual citizenship situation. Absent that language, the NYS is not required to supply the "right" birth certificate, so one has ample room to foot-fault.

Thanks to all, and I will keep you updated on our progress.

Patrick


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 21st, 2012, 7:46 am 
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Joined: December 16th, 2011, 1:50 pm
Posts: 179
Can anyone give me insight as to whether this would apply to NYC? I am in the same boat w/ NYC and was told through posts that a delayed BC was absolutly NOT an option. So I have spent $$ on researchers that could have possibly been spent on an attorney obtaining the delayed cert? And my apt w/ Phily is in 5 months.

Any advise would be appreciated!


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 21st, 2012, 2:52 pm 
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Joined: March 5th, 2011, 6:26 pm
Posts: 1416
......I don't see how NYS can escape the legal requirement to create a birth record, if there is reasonable proof for the birth, which there is--my wife is living proof!.......

I doubt any court anywhere will create a birth record for a deceased person and I must disagree that your wife is living proof. Just how do you figure that a person who was not present at the birth is living proof? How do you also figure that a marriage certificate, social security card and death certificate issued a number of years later are also proof of the date and place of a person's birth?

Why is this my opinion? Because my recently recognized significant other learned during the document gathering process that the birth certificate of his deceased father born in 1916 (fortunately not in the direct line) was actually created at the deceased's own request in 1941 (showing birth in a US state) so he could join the military. (Remember, America was involved in a war at that time and needed all the volunteers it could get). That and the fact that his father was a fluent Spanish speaker led my sig. other to believe that since there was no birth certificate issued in 1916 and his father apparenently didn't need one until 1941, his father may actually have been born in Mexico, despite the fact that the rest of the US document set matching the date and place of birth did exist.

I will be shocked if any court creates a birth certificate for your wife's deceased ancestor based on your "proof" and I will be even more shocked if any consulate buys it should you have success with a court.

Moderator Note: A final warning has been issued to SalSno and misleading posts stemming from this comment have been removed. This post has been left only because it fueled such a response that the rest of the thread would not make sense without it.


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 Post subject: Re: End of Road? No NYS Birth Certificate for GF?
UNREAD_POSTPosted: June 21st, 2012, 4:06 pm 
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Joined: August 7th, 2011, 9:09 am
Posts: 250
NY PHL section 4175 states that at any time after the birth of any person within the state the commissioner shall immediately require the physician . . . Who being in attendance upon a birth, failed or neglected to file a certificate, to obtain and file one at once. Paragraph 3 states that if such person is deceased or cannot be located then the person making the application for the BC may file such certificate together with such statements subscribed and affirmed by the person making them and other evidence as the commissioner may require.

This statute contains language that gives the commissioner broad discretion ("and other evidence as the commissioner may require") and a court is unlikely to force the commisioner's hand absent showing an abuse of discretion or dereliction of duty (see Article 78 proceedings).

In all likelihood you will have to show contemporaneous evidence of the birth in NYS. All of the witnesses are deceased and I will assume you do not have any hospital records, medical records, baptismal records or birth announcements that would fix the birth in NYS.


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