Does citizenship or immigration status affect a parent’s chances of obtaining custody of their child? This is a question you may be asking if you or your spouse is a non-US citizen residing in Colorado, and you are legally separating.
The short answer is no – being an immigrant or not having a permanent resident status in the US does not prevent a parent from having child custody. However, this does come with a number of implications. Let’s take a look.
What The Supreme Court Says
Immigration status is often a contentious issue, but one aspect where it is considered legally irrelevant is parenting. In a notable child custody case, Troxel v Granville, the United States Supreme Court held that “The interest of the parent in the kid’s upbringing is of highest importance. Therefore, a person’s immigration status is never the only factor which is taken into account when deciding whether or not he or she can get child custody.”
The Court also recognizes that it is a parent’s fundamental right to raise his or her child. The parent’s citizenship or immigration status does not take away this right. This means that whether or not a parent is a US citizen, he or she has the same right to seek child custody. It also means that the child custody case should be decided by the court the same way as those cases where both parents are US citizens.
Upholding The ‘Best Interests’ Standard
The main standard of family courts when deciding on child custody is always the child’s best interests. Each parent seeking custody of their child must be able to show the court that the little one will be nurtured best under his or her parenting. An immigrant parent, just like any American parent, must provide evidence that he or she can best provide for the child’s education, healthcare, social upbringing, and other needs.
Though non-US citizens have the same chance as American parents to prove that they can uphold a child’s best interests, they may encounter some challenges. For instance, if an immigrant parent has to move back to his or her home country, it may be more complicated to show the expected living arrangements of the child there. The other parent might also assert that moving to a different country would negatively affect the child’s development.
To overcome challenges like these, it is wise for a non-US citizen parent to enlist a family law attorney when seeking child custody.
What If One Parent Is An Illegal Immigrant?
A parent still has the right to seek child custody even if his or her immigration status is illegal. This status alone also does not prevent him or her from obtaining custody. Again, the main goal of the family court are the bests interests of the child – the family court cannot discriminate against immigrant parents nor hand over an illegal immigrant to the Immigration and Customs Enforcement (ICE).
However, a parent’s illegal status can be used against him or her by the other parent seeking custody. The other parent could argue that the child would be better off being raised by someone who has no problems with the law. Because of this, an immigrant parent with an illegal status must consult a family law attorney – apart from an immigration lawyer – for a better chance of getting custody of the child.
If you are a parent without a US citizenship and facing a child custody dispute in Colorado, please don’t hesitate to talk to any our lawyers at the Goldman Law Firm. We can talk about your rights, opportunities, and concerns regarding the custody of your child.
Disclaimer: We are not immigration lawyers. Since this matter involves immigration issues, you should consult an with an immigration lawyer.