According to a report available on the U.S. Department of Health and Human Services website, about 1 in 10 families with children have mixed immigration status, which is where some family members are legal citizens and others are in the U.S. illegally. This can have numerous social, legal, and financial repercussions for these families, especially when it comes to divorce and child-custody issues. If your immigration status is in question, here's how this might impact your child-custody case.
Best Interest of the Child
The family court's primary concern is what is in the best interests of the children in custody cases. As such, a parent's immigration status is just one of many factors the judge will consider when deciding which person should get custody of the kids. In theory, a parent with an undocumented or illegal status in the United States is just as likely to gain custody of the children after divorce as a parent who is a legal citizen, especially if the parent who's a legal citizen proves to be unfit in some way (e.g., abusive).
However, a parent's immigration status can tank his or her chances of gaining custody of the children if there is reason to believe the parent may be deported by U.S. Immigration and Customs Enforcement in the near future. In fact, in some jurisdictions, even the mere possibility the parent could be deported from the country at any time—regardless of how likely that outcome would be—is enough to lead a judge to award custody of the kids to the parent who's a U.S. citizen.
The concern here is two-fold. The judge may be worried about the emotional fallout that can result from giving the non-citizen parent custody of the kids only to have to uproot the children and hand them over to the parent who's a legal citizen when the non-citizen parent is deported. Another concern is the type of life the kids may have if the non-citizen parent is deported and takes the kids with him or her. If the judge feels the undocumented parent wouldn't be capable of providing for the kids and keeping them safe back in his or her home country, then the court may be more inclined to give custody to the parent who is a U.S. citizen.
Minimizing the Impact of Your Immigration Status
If you're looking to divorce your spouse and aren't a legal citizen of the United States, there are a couple of things you can do to minimize the effect your immigration status has on your case. The first step would be to become a legal citizen if that's your ultimate goal. Even starting the naturalization process may be enough to allay the court's fears you may be deported.
Another thing you can do is show you're capable of providing for your kids' health, education, and well-being in your native country should you actually be deported. This may involving showing the type of job you could get based on your skills and education as well as where you're likely to live.
Dealing with child-custody issues when your immigration status is in question can be difficult. Contact various attorneys, such as William Kirby, Family Law Attorney, until you find one who has experience in this area and who you are comfortable working with.