When it comes to determining child custody, an immigrant’s status (both legal and illegal) usually only matters if the parent wanting custody faces deportation. That matters because deportation would directly affect the child’s life. Typically, there are many other factors that are considered more important than immigration status when fighting for child custody. These factors include the physical and mental health of the parent, financial ability to provide for the child, and what is in the best interest of the child.
With immigration being a hot button topic, couples in the midst of a contentious divorce may play the immigration card to hurt their spouse when a divorce is pending or imminent. An experienced divorce lawyer with experience handling cases involving immigration issues can help you understand what you can expect after a spouse files for divorce. Your immigration status may have nothing and should have nothing to do with gaining custody of your children.
Parents’ Rights
Parents have a constitutional right to the care and control of their children, and this right is not confined to citizens of the United States. If you live in the United States, you should be afforded the same rights regardless of your immigration status. Unfortunately, in many cases immigrants are not being afforded the same rights, and children and parents are suffering. They’re being separated, and parental rights are being terminated.
Family separation is not a goal of immigration law and in many cases, the permanent removal of children from their undocumented parents is the result of state child welfare agencies and family courts rather than federal immigration law. United States immigration law assumes immigrant parents will retain custody of their children regardless of the parents’ status and therefore considers family separation an unlikely consequence of deportation.
Even before President Trump’s aggressive mission to keep migrants out of the United States, immigrant parents were losing their children despite immigration law’s stance that deported parents retain custody of their children. In fact, family courts and child welfare agencies often express the belief that a parent’s undocumented status means the parent is unfit, without any additional evidence to prove the parent is not fit to raise children.
What makes people good parents has nothing to do with their status as “documented” or “undocumented” and has everything to do with what is in their child’s best interests. Getting divorced is difficult enough on families and especially children, and when children are ripped out of a parent’s arms only because of their immigration status, something must be done. If you’re thinking about asking for a divorce, or if you know your spouse is going to seek a divorce, you must hire a good divorce lawyer who has experience dealing with immigration issues affecting divorce and custody.
Mixed-Status Families Quite Common
In the United States, custody decisions in divorces in which one spouse or partner is a citizen of the United States and the other is an illegal immigrant are made in the same way as those where both spouses are U.S. citizens. Approximately 85% of all immigrant families with children are mixed-status families (one “legal” parent and one illegal immigrant parent with at least one child who is a U.S. citizen). According to the National Center for Institutional Diversity, there are approximately 16 million people in mixed-status families in the United States at the current time, and that number is expected to climb.
If you or someone you know is in need of a visa immigration lawyer, search our experienced attorneys today.
