Wednesday, November 12, 2014
A father in New York feels that he is being asked to do something he can’t legally do in order to get custody of his little girl. The man, we’ll call him Juan, is an illegal immigrant. Some people may say that his status is his fault and he should pay the consequences. Caught in the middle is his two-year old daughter. She is in foster care and faces losing her father forever.
Juan feels that he may be deported any day. Regardless, he has retained an immigration attorney to fight for him and help him get his daughter back.
Juan has not been accused of mistreating his daughter. His ex-wife lost custody of the little girl and Juan wants his daughter with him. Conflicting laws and rules are making it tough for Juan to succeed. The Department of Children’s Services advised Juan that he can have his daughter if he gets a New York driver’s license. Being an illegal immigrant, Juan is not able to get a drivers license. Juan is caught in a labyrinth of rules that can confound almost anyone..
Roughly 85 percent of all immigrant families, with children, are mixed-status family units where one parent is either legal or illegal and has at least one child who is a US citizen. According to a report published in 2012 by the Applied Research Center, approximately 4.5 million American children come from mixed-status families.
According to some legal observers and politicians, the root of the problem is the Fourteenth Amendment to the US Constitution. It basically says that anyone born in America is automatically a US citizen. Children born inside America’s borders to parents in the country illegally, draw their first breath as American citizens.
Some members of Congress, notably Senators Graham and Kyl, are talking publicly about the need to modify the amendment.
Claiming that the amendment is being abused, the pair point to instances of wealthy foreign nationals coming to the US just long enough to give birth to a child. So far, legislation to modify the constitution has not been introduced and the talk about changing the law is, for now, just talk. As the conversation heats up, the millions of immigrants who enter America illegally stand to be affected as well.
Child Custody Rights of Undocumented Aliens
Undocumented aliens in New York and elsewhere do not give up their rights to child custody just because they’re in America illegally. The legal battle can be long and, at times, heart breaking, but regardless of a parent’s legal status, certain rights still apply.
- The American constitution promises that even if someone is in the country illegally, they can still have their day in court. The American justice system does not require someone to be a legal resident, or citizen, in order to pursue child custody. Although there can be consequences, including deportation, from going to court, the court is still open to everyone
- Right to Seek Custody. An individual can be the custodian of their child regardless of their legal status. Other aspects will be examined closely though, including whether or not the child, or other parent, is a legal citizen.
- Right to Protect the Child. Even if one or both parents is an illegal alien, The court’s decisions regarding child custody are made in the best interests of the child. The court will look at who can best support and provide for the child. The court will also try to determine if the custody seeking parent was ever found guilty of child abuse.
The state family court and the immigration court are two different, unrelated systems. Often they find themselves dealing with the same case. Each court will make its own decision based on a different set of laws and objectives. A non-citizen may find themselves in the position of having to obey contradicting rulings from both courts.
In some cases, if an illegal alien has been given custody, or merely visitation rights, and an immigration judge has ruled to give the non-citizen permanent residence, a higher court could dispute the decisions. If this occurs, the non-citizen would have to go through the immigration process again and seek a new ruling. With a minimal amount of decisions published on this matter, the immigration judge has to base his decision on his perception of the case and the parties involved.
Being an undocumented alien doesn’t have anything to do with a person’s skill and abilities as a parent. Yet many are caught in a legal bind and will likely remain so until laws are changed.
Arkady Bukh, Esq
Bukh Law Firm
14 Wall St, New York NY