The Impact Of Immigration Status In Virginia Child Custody Cases

Posted on November 4th, 2013, by Ariel Baniowski in Custody, Family Law, Immigration Law. Comments Off on The Impact Of Immigration Status In Virginia Child Custody Cases

Immigrant MotherWhen deciding the “best interests of the child” for purposes of a custody and/or visitation determination, Virginia courts look to Virginia Code Section 20-124.3. In large part, that code section asks Virginia trial courts to determine the mental and physical health of the parties and the child, the role each parent has played and will play in the child’s life, the ability and willingness of the each parent to support the child’s other familial relationships, the reasonable preference of the child, and any history of family abuse. Nowhere in the factors listed in Code Section 20-124.3 is the court explicitly asked to address the immigration status of either parent. However, immigration status can have an impact on your custody case if you, or your attorney, are uninformed, and immigration status can complicate the already difficult questions before the court.

Immigration Status and Child Custody: What You Need to Know

First, I note that a parent’s detention or pending removal from the United States is not dispositive of how a Virginia court will decide child custody. As stated by the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57, 65 (2000), the “interests of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by the [U.S. Supreme] Court.” Regardless of immigration status, a parent has a constitutional right to rear their child. So long as a parent is “fit” to parent their child, a court will not ignore the presence of this fundamental right.

Second, although a Virginia court cannot base its decision solely on the immigration status of a parent, there are practical effects that the court is forced to consider when analyzing the best interests of the child. For example, the court must consider any possible hardship to the child that might be created by a parent’s immigration status. Hardship can occur if a parent is facing removal proceedings, or if a parent has already been deported and is asking the court to award them custody, despite their non-residence. Note that a custody determination that will require a child to relocate to another country with one parent is not automatically considered a hardship to the child–even if the other country does not offer the same level of education, wealth of opportunities, or quality of health care as the United States.

In fact, in some situations awarding custody to the non-immigrant parent may prove to be more of a hardship than awarding custody to the deported parent or parent facing removal proceedings (for example, in cases where the non-immigrant parent is unfit, neglectful, absent, or abusive). So, again, immigration status is neither dispositive of the custody result nor of hardship to the child.

Finally, and most importantly, remember that there is no legal presumption that the non-immigrant parent should be awarded custody. Often times, the parent who is a U.S. citizen or lawful permanent resident makes an issue of the other parent’s immigration status in an attempt to prejudice the court. The parent holding the “superior” immigration status either (1) assumes such status will give them an advantage in their custody matter, or (2) wishes to intimidate the parent who holds the less “superior” status into settlement. An immigrant parent who is represented by a good family law attorney will know better.

Immigration Status and Children: Three Frequently Asked Questions

I should take this opportunity to answer three questions I am frequently asked in this area:

  1. Can parents evade their child support obligations simply because of their undocumented immigration status? As a general rule, no. If these parents have the resources to pay child support, they can be made to pay—regardless of immigration status.
  2. Can parents who are undocumented immigrants seek public assistance for their lawfully present children? In most cases, yes.
  3. Can a non-custodial, non-immigrant parent apply for a child’s immigration status, despite not being the child’s primary custodian? By and large, yes.

To learn more about how custody, family law, and immigration intersect, contact an experienced family law and/or immigration law attorney. Livesay & Myers, P.C. has teams of both child custody lawyers and immigration attorneys who are fully versed in these issues. Contact us to schedule a consultation today.

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Ariel Baniowski is a family law attorney in the Manassas office of Livesay & Myers. She is an aggressive advocate for those undergoing separation, divorce, or custody proceedings in Northern Virginia. Ms. Baniowski combines a tireless work ethic with years of experience in family law and a passion for helping people through difficult circumstances.

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