How Does Your Status As An Undocumented Immigrant Affect A Child Custody Case?


A study done in 2012 indicated that around 4.5 million children, born in the U.S., live with at least one parent who is an "undocumented" immigrant. What happens to those children when the parents divorce and one parent is in the U.S. illegally? Does the immigrant parent, who has no legal right to be in the country, have any right to custody? This is what you should know. 

How do family court and immigration court interact?

The first thing that you need to understand is that family court and immigration court are separate entities and work under different rules. The family court usually has no interest in turning illegal aliens over to immigration. Their primary concern, during a custody hearing, is the well-being of the child involved.

That does not mean, however, that you don't have to be concerned about the possibility of deportation. Your spouse may try to use your status against you and could try to alert immigration to your presence and essentially "turn you in." That means that it's in your best interests to retain different attorneys for your custody issues and your immigration issues.

Does your immigration status automatically disqualify you for custody?

While your immigration status is likely to be only one of several factors that the court uses to make its decision about what's in your child's best interests, it is going to be an important one. If you are currently at risk of deportation, the court may decide that it is too risky to give you custody of your child. You can, however, still get liberal visitation rights while you sort out your immigration problems.

On the other hand, the court may decide that your spouse isn't up to the task of raising your child. If that happens, you may be able to get custody and child support. Doing so may actually bolster your ability to stay in the U.S. while your immigration status is being decided.

What if you want to return to your home country with your child?

If you have the financial means to return to your home country and want to do so, you cannot take your child out of the U.S. until the custody issue is resolved. If you can prove that you can provide for your child's physical, emotional, and financial needs once you return to your own country, you may still be granted custody. Leaving the U.S. without the consent of the court and the child's other parent, however, could open you up to charges of parental kidnapping and cost you custody and visitation altogether.

For more information about what to do if you're an undocumented immigrant going through a divorce and custody battle, talk to an attorney in your area.


24 February 2016

Find Legal Help for Your Loved Ones

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