No matter what your stance is on the issue, the status of this country’s immigration laws are extremely controversial. The current law of the land states that if you are born here, you are automatically an American citizen. If you are here illegally, you are living with the constant threat of deportation.
One of the many issues surrounding this debate is “what happens to the children who are born in this country to one parent who is here illegally?” This very specific issue is beginning to cross into the realm of the practice of family law. In contested custody cases, Courts are faced with the task of determining the best interest of children. Occasionally, a Court must decide to either primarily place the children with the parent who is here legally or the one who is not.
I was recently faced with this issue in one of my own divorce cases in which I represented the father of two children. The mother was here illegally and the couple was married for approximately 8 years. Although there were several other facts supporting the Court’s decision to grant my client primary custody, the Court also reasoned that the mother did not have any legal means of supporting herself or the children. While it is unclear whether the mother’s immigration status was the determining factor in the Court’s final decision, it certainly did contribute to its ruling.
My advice to any parent who is in this country illegally and have children born as United States citizens is to gain legal status as soon as the opportunity presents itself. If such a parent has the misfortune of becoming a party to a custody dispute, the Court is statutorily required to consider both parents ability to financially support the children outside of the incidental child support. The Court must also interpret and uphold the laws of this country. Accordingly, it cannot encourage anyone to break the law by working without the proper status to legally do so.
The purpose of this blog is not to share this firm’s opinion on the issue of immigration reform. As always, my only intent is to provide information that will hopefully guide all parents to make decisions that will protect the wellbeing of their children.