Family Law Considerations When One Parent is a Non-Citizen

For centuries, people have looked to New York as a place of hope and opportunity for immigrants. Today, New York State still boasts a large population of both legal and undocumented immigrants. In 2014, 775,000 undocumented immigrants made up 17 percent of the immigrant population and 3.9 percent of the total population in New York, according to the American Immigration Council. With such a large population of non-citizens in New York, it is imperative that non-citizen parents, as well as U.S. citizen partners, understand their rights in family court.

Does immigration status affect whether a family court awards child custody or visitation?

No, in regards to family court matters, it is important that both parents understand that legal status does not determine child custody or visitation. Both citizens and non-citizens have the right to file a petition with a family court. A family court judge will award child custody based on what is in the best interest of the child.

That being said, it is important to note that the deportation of a non-citizen during child custody proceedings may limit the non-citizen parent’s ability to regain custody or participate in proceedings, according to the American Immigration Council. Even if the court requires the parent’s attendance, U.S. Immigration and Customs Enforcement (ICE) may not facilitate the travel of a deported parent back to the U.S. to attend the family court proceedings.

Can a non-citizen parent file an order of protection against a U.S. citizen?

Yes, both citizens and non-citizens can file for an order of protection.

Can a family court proceeding negatively impact a non-citizen parent’s immigration status?

According to Legal Information for Families Today (LIFT), if a non-citizen parent is arrested for a violation of a court order, such as an order of protection, it may negatively impact his or her immigration status. Under the Trump Administration, the priorities for deportation have expanded. In February 2017, a memo issued by Department of Homeland Security (DHS) Secretary John Kelly stated that although the agency will continue to prioritize the deportation of those who are serious criminal offenders or threats to national security, it will do so while deporting those who do not fall into those categories. Today, non-citizens who commit low-level crimes, even those who have legal residency papers, may be at risk for deportation.

Is it legal for one parent to take a child out of the country if the other disagrees?

The child custody arrangement often determines what one parent can and cannot do without the other’s permission. If the parents have joint custody of the child, one parent is not allowed to take the child out of the country for a trip or relocation without the other parent’s consent. In some cases, a parent will file a petition for a court order that states that the child cannot travel without permission from that parent or from the court.

If one parent has sole custody of the child and there is no court order that states otherwise, he or she can take the child out of the country. However, if the child is under 16 years old and needs a passport, the application process requires both parents’ signatures on the application form and the parents must appear in person to apply for it. According to the U.S. Department of State Bureau of Consular Affairs, if one parent is not able to appear in person for the passport application, he or she may provide a signed consent form. In instances in which one parent does not want the other parent to take the child out of the country, the parent applying for the passport must show a court order confirming sole custody of the child, or court permission to take the child out of the country.

If a non-citizen and citizen adopt a foreign-born child, does that child automatically become a U.S. citizen?

Yes, a foreign-born child will automatically become a U.S. citizen, as long as he or she meets the following requirements:

  • One of the adoptive parents is a U.S. citizen.
  • The child is in the legal and physical custody of the adoptive parent.
  • The child is in the U.S. as a permanent resident.
  • The child is younger than 18 years old.

The complexities surrounding family law and how it can affect non-citizen parents can be difficult to navigate. It is imperative that non-citizens and citizens who are looking to resolve a family law matter seek the guidance of an experienced New York family law attorney who can protect their legal rights and guide them through the process. The Brooklyn family lawyers at Wingate Kearney & Cullen, LLP are experienced in handling various family law matters, including divorce, child custody and visitation, orders of protection, and adoption. For more information or to schedule a consultation, call our Brooklyn family lawyers at (646) 620-6416.

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