Can My Immigration Status Affect My Divorce?
A person’s immigration status may become an issue in a person’s divorce case. It can have a significant impact on the divorce itself and on a child custody dispute as well. How immigration can affect divorce proceedings is discussed below.
First, it is important to recognize the various kinds of status that an immigrant may have. A person who does not have U.S. citizenship may be a non-immigrant, a person who only wants to live in the U.S. temporarily, or an immigrant, that is a person who wants to reside in the U.S on a permanent basis.
A non-immigrant person has a non-immigrant visa. A non-immigrant may be present in the U.S. for a wide variety of reasons with one of many possible visas; they may be a tourist, a person seeking medical treatment, a student or the spouse or child of a student. A non-immigrant may have a visa that allows them to work temporarily in the U.S.
There are other types of non-immigrant visas as well. The spouse and unmarried children under 21 of a non-immigrant may also have non-immigrant visas that allow them to live in the U.S. for a specified period of time only. Some non-immigrants are able to change their status to that of an immigrant.
Of course, there are also immigrants who do not have visas of any kind and are simply present without legal status, i.e., they are undocumented.
Can My Immigration Status Affect Child Custody in My Divorce?
If a person has applied for an immigrant visa before they file for divorce, their visa application may not be approved if they get a divorce. This is especially true if the person’s application is dependent on that of the spouse they wish to divorce. In seeking a divorce, the person may lose the status that entitles them to a visa.
Alternatively, once a divorce is final, then a noncitizen might lose their eligibility for U.S. residency. Some couples may want to agree to postpone the filing of their divorce until their case for U.S. residency, temporary or permanent, is approved.
Generally, a spouse should time their divorce so it is coordinated with a change of status to another immigration status that is not tied to the spouse they are divorcing. A spouse who does not have U.S. citizenship or permanent resident status may need to plan carefully, so as to ensure that both parties can remain in the U.S., especially for the benefit of any children of the marriage.
Fortunately, the status of the children of a marriage involving noncitizens is not affected by the divorce, because children are still “children” per immigration law both before and after a divorce. So, if a child’s status is dependent on the status of their parent, they cannot lose that status.
Do I Lose Custody of My Child if I Am Deported?
If a parent is deported by Immigration and Customs Enforcement (ICE) because they do not have a legal right to remain in the U.S., the other parent automatically acquires custody of the child. The deported parent loses custody of their child. The deported parent is simply not available to take custody of their child and to care for the child.
There are situations in which the child may become a ward of the state if the other parent still in the U.S. is considered unfit to have custody for some reason or cannot be found. As a ward of the state, the child might be placed in foster care.
Child custody proceedings can be complicated when the immigration status of one or both parents does not guarantee their permanent residence in the U.S. In a child custody proceeding, courts give priority to the best interest of the child when deciding issues.
Among the issues that may be decided in a custody dispute are the physical and legal custody of the child. A court may also decide whether to impose a geographic restriction on the child’s primary residence, and whether to impose any passport or travel restrictions on the children.
It is possible for a court to assign primary physical custody to a noncitizen spouse, however in many cases the court may require the custodial parent to live within a limited geographic area, so that both parents may continue to have frequent contact with their children.
Of course, if both parents have permanent immigrant status in the U.S., the custody dispute may be resolved in a very different way. In this case, a court might award the parents shared or joint custody.
How Might Deportation Affect My Relationship with My Child?
Needless to say, if a parent is deported and loses custody of their child, it could have a strongly negative effect on the deported parent’s relationship with their child. A person could lose their right to custody and visitation, because they are not present to assert their rights in a custody proceeding.
As noted above, a person subject to removal (deportation) may have to remain outside the U.S. for a long time before they become eligible to seek legal status of some kind.
How Are Most Child Custody Cases Decided?
First of all, it must be recognized that divorce and child custody are governed by state law and issues are litigated in state courts. So the law varies from state to state within the U.S.
Generally, however, in almost all states in child custody cases, courts focus on evidence regarding custody factors and not immigration status. In no state is immigration status a factor that a court is directed to consider in a custody case.
A court should decide where a child should live primarily based on consideration of the following factors that relate to the best interest of the child:
- Which parent manages the child’s daily routine;
- Who takes the children to the doctor and to school;
- Which parent enrolls the child in school;
- Which parent participates in the Parent Teacher Association (PTA);
- To which parent is the child most strongly bonded;
- Which parent does the child seek out when sick;
- Who arranges the child’s extracurricular activities; and
- Whether either parent has perpetrated domestic violence.
If one spouse wants to raise the immigration status of the other as an issue in a custody dispute, the court should require that spouse first to show why the issue is relevant to the case.
When a court chooses to hear evidence about a party’s immigration status, it is supposed to take steps to ensure that the information it receives is legally correct.
What Is the Primary Focus in Child Custody Cases?
Again the primary focus of a court in a child custody case is the best interest of the child. A court should determine this based on a consideration of factors such as those listed above.
The immigration status of either parent is not relevant to this central child custody determination or the determination of which parent has better parenting skills. Of course, if one parent is absent because they have been deported, then a court must consider this.
In some cases in which information about immigration status has been allowed in custody cases the ultimate custody decisions are influenced by bias against immigrants and in favor of U.S. citizens. It is important to remember that the most important considerations relate to the best interest of the child.
Again, as noted above, courts should focus their attention only on evidence relevant to the issue of custody and not immigration status, which is not relevant in most cases. In no state does custody law include the immigration status of either parent or the children as a factor to be considered in custody determinations.
If a party in a custody dispute wants to make an issue of the immigration status of the opposing spouse in a custody case, they should have the burden of showing the relevance of that factor.
If a court chooses to hear evidence about one spouse’s immigration status, it must be certain that the information it receives is legally correct.
What Kind of Impact Does Current Immigration Policy Have on Mixed-Status Families?
There has been a marked increase in the number of mixed-status families in the past 2 decades in the U.S. The increase began to develop in the 1990s when movement back and forth between the U.S. and countries from which many of its immigrants came became more difficult.
Reportedly many immigrants stopped returning to their home countries and chose to bring relatives to the U.S. or start families here.
In addition, there is a backlog in processing visas and this makes entering the U.S.legally or getting legal status more difficult, if not impossible.
For example, for immigrants from Mexico, obtaining a family-sponsored green card can take as long as 22 years, because visas for citizens of Mexico have exceeded their allocation.
At the present time, the United States Citizenship and Immigration Service (USCIS) is processing applications in some categories that were filed in 1997. This delay can drive people to try to enter the country illegally to reunite with their family members. However, if a person enters illegally and is discovered, this can lead to detention and possibly deportation with all of the negative consequences for one’s immigration status.
In addition to the great backlog in processing, there has been a decrease in the opportunities people have to legalize their status. In previous years, the period during which an immigrant might be undocumented was not as long and it affected fewer people. But the ability to obtain legal status for undocumented immigrants was greatly limited by the mid-1990s.
Of course, there is more to immigration policy than this. In fact, immigration policy and how it may affect child custody is quite a complex topic. Much depends on the exact immigration status of the parents. This is why any parent in a mixed-status family who is contemplating legal separation or divorce wants to seek out good legal advice and representation.
What Are My Options for My Mixed-Status Family?
The best approach for a person who is a parent in a mixed status family is to be proactive. Both spouses should consult a family law attorney and an immigration attorney to find out the consequences that their immigration status might have in the event they get divorced. This is especially important if they have pending applications for a change in their immigration status.
As noted above, the spouses may want to coordinate an action for dissolution of a marriage with any pending immigration applications so that the divorce does not have a negative effect on the applications.
What Are Possible Custody Arrangements?
It is important to understand that there are two kinds of custody. As noted above, One kind is physical custody, which is where the child lives. The other kind is legal custody which is who makes decisions about the child’s upbringing, e.g. where they go to school.
The arrangements for both kinds of custody might be shared or joint custody. Both physical and legal custody can be shared or joint. Or one parent can have primary physical custody which essentially means that the child lives with one parent and the other has visitation rights.
In general, if legal custody is joint, then both parents have equal input into decisions regarding their child’s upbringing. If physical custody is joint, then the child spends some amount of time living with each parent. In some states, if physical custody is shared, then the amount of time a child spends with each is divided on a 50/50 basis.
Parents thinking about divorce should remember that they can make their own agreement about custody and present it to the court. Unless the agreement is obviously unfair to one parent, the court accepts the agreement and includes it in the divorce decree. In this way, the parents can avoid problems related to immigration status.
Are Any Alternative Care Arrangements Available to Me If I Am Deported?
One way in which a parent facing deportation might protect their child and their own relationship with their child is through a living will. The parent can draft a living will to name a guardian for their child if the parent becomes unable to care for them because of illness or deportation. Hopefully, the living will could name a friend or relative of the parent as the guardian. The parent may also set aside funds for the support of the child in a living will.
What Support and Resources Are Available for Mixed-Status Families?
Unfortunately, neither federal nor state law guarantees legal representation to people who are in the custody of ICE and are threatened with deportation. Policy requires ICE to make it possible for parents in detention to participate in custody proceedings if they are a party to them. They should do this when required by the court in which the proceedings take place. However, it is not clear how a parent in detention might assert their right to be present in custody hearings.
If a parent is not detained, then they should be able to participate in custody hearings, however they would have to provide themselves with legal representation from an attorney.
What Recent Changes in Immigration Policies Affect Child Custody?
Immigration policy constantly changes. Currently, federal law requires that a person’s parental rights be terminated if a child has been out of a parent’s custody for 15 of the past 22 months. This could happen in the event a person is deported and does not have custody of their child who remains in the U.S.
A person can maintain or re-acquire parental rights through their state’s Child Protective Services (CPS). CPS can implement a reunification plan but it generally requires a parent to have regular contact with the child. This can make reunification difficult at best for parents who are detained or deported.
Parents may seek release from detention so they can care for their children while they are in immigration proceedings. However, apparently exercising this right through ICE may not be possible.
Failing release from detention to care for children, parents should have regular visitation with their children. These might take place only through video or teleconferencing.
Again, ICE should make it possible for a detained parent to participate in custody proceedings when required by a court. But still it may not happen. If the custody hearing involves CPS, CPS may have difficulty locating and notifying a detained parent.
A family court may not know why a parent is detained and unable to participate in proceedings. Finally, ICE officials may not grasp the impact that their enforcement of immigration laws has on the children who are U.S. citizens and may be left in the U.S. by deported parents.
What Is the Impact of Policy Changes on Mixed-Status Families?
In the case of mixed-status families in which both parents are able to maintain their legal status as residents of the U.S., there should be little to no impact on a child custody dispute of the parents’ immigration status. A custody proceeding to determine which parent should have custody, physical and legal, or whether it should be shared would proceed as it usually does for families who are not mixed-status.
The court would focus on the best interests of the child and take the traditional factors into consideration when deciding on custody of children of the marriage.
If one parent has been deported, the other would generally win custody if they are otherwise fit, because the deported parent is not available to take custody and care for the child.
In other cases, it may be less clear how a court would integrate immigration status into custody arrangements. Much would depend on the facts of each situation.
Both spouses want to seek the aid of family law and immigration lawyers in order to obtain the best possible outcome. Hopefully, in the future. U.S. immigration law and policy will be adjusted so as to offer better alternatives for mixed-status families.
Do I Need the Help of a Lawyer for My Mixed-Status Child Custody Issue?
Changes in immigration policy would help alter the fortunes of children and their families. Clearly, granting permanent resident status to parents of children who are U.S. citizens could change outcomes for the better.
If you are a documented or undocumented parent involved in a child custody dispute, you want to consult a family law attorney. You should make sure that your lawyer can explain how your immigration status might affect your child custody situation and what to do if you face the possibility of deportation.
You may want to speak to an immigration lawyer also in order to have the most accurate information about your immigration status. LegalMatch.com can quickly connect you to both divorce and immigration lawyers who can set you up with all the information you need.
