If you are an illegal immigrant and have a child with a U.S. citizen, legal resident, or another illegal immigrant, you may be concerned about your right to maintain custody of your child after you and the child's other parent separate. If you are in this situation, it is important that you talk to a lawyer who is experienced in family law and immigration law. However, there are a few things that you should know first.
You Have the Right to File For Custody
Custody arrangements are meant to determine what is best for the child involved. It is not a criminal proceeding, and your ability to file a petition for custody is not impacted by your status as an immigrant. You may want to file for custody to take your child with you if you plan to return to a country where you have the legal right to reside. You may also want to file for custody to protect your child or children from an abusive parent. You may also want to file for custody if you think that the child's other parent will try to keep them from you.
Your Status as an Illegal Immigrant May Influence Custody Decisions
In theory, your status as an illegal immigrant should not impact the court's decision regarding the custody of a child. However, in practice, your status may have some bearing on the case. For example, if the courts determine that you are at high risk of being deported, they may assign primary custody to the other parent in order to ensure the child has a consistent childhood. However, if you can show that you are taking steps to become a legal permanent resident, this should have less of an impact on the court's decision.
Family Court Will Not Report You To ICE
As an illegal immigrant, you may be wary of being involved in legal issues due to your status. However, family courts rarely report illegal immigrants to Immigration and Customs Enforcement (ICE). Exceptions are made when, through the course of a custody hearing, it is discovered that you are conducting ongoing illegal activities. Instead, the focus is on providing stability for the child by creating ways that the child can maintain healthy relationships with both parents.
Being Deported Will Likely Affect Your Custody
If, for some reason, you are deported while you have sole or joint custody of a child, it is likely that your custody will be reviewed before you are deported. Your child's other parent may then receive partial or full legal custody at that point. If the other parent is not qualified, there is a chance that custody will be granted to another relative or the child will be taken into child protective services.
Having Custody Will Not Prevent You From Deportation
Currently, having joint or sole custody over a child in the United States will not protect you from deportation. However, in recent years, the focus on deportation has shifted towards illegal immigrants who commit crimes as opposed to all immigrants.
Furthermore, President Obama recently issued a presidential executive order that protects the parents of U.S. citizens from deportation. If that executive order stands up in court this spring, having custody and contributing to the well-being of your American child may be enough to give you the legal right to stay in the United States and work towards legal status for yourself.
If you are an illegal immigrant, you may feel concerned about petitioning a family court for custody. However, there are methods that can help ensure your continued relationship with your child, so it is important that you speak to an experienced lawyer as soon as possible. For more information, you can also visit sites like http://madisonlf.com.
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