Being an undocumented immigrant living in Utah, or anywhere in the United States, has its share of uncertainties. Many people prefer to live "below the radar," avoiding contact with the legal system to avoid drawing the attention of the authorities and risk possible deportation. This is limiting enough when you are just thinking about yourself. What happens when your child is a U.S. citizen, but you are not?Can you get custody of your child if you are undocumented?
There are a couple of scenarios you may be concerned about: what happens to your child if you are deported, and what happens if you need to seek custody against the other parent. You do have the right to custody of your children in general as an undocumented immigrant, and you have the right to go to court against your child's other parent to try to get custody if you are separating or getting a divorce. That said, worries you may have about being involved with the court system are reasonable, and you should learn the best way to protect yourself and your children.
In the United States, parents are considered to have a constitutional right to the care of their children, and this includes parents who are undocumented immigrants. U.S. immigration law assumes that you, as a parent, will keep custody of your children regardless of your own immigration status. In other words, if you were to be deported, it would be up to you whether your child who was born in the United States leaves the country with you—or at least this is the assumption most immigration authorities make under the law. They tend to assume that if deported, undocumented immigrant parents will take their children with them.
According to a report by the American Bar Association, a significant number of immigrant parents are losing custody of their children in spite of the fact that immigration law presumes they have a right to custody of their children. Many courts and child welfare agencies operate on the assumption that undocumented status equals unfitness as a parent, even though neither federal nor Utah statutes support this idea. If you are threatened with losing custody of your child because a child welfare agency suggests that your undocumented status makes you unfit, you need an attorney who understands and can argue Utah custody law.
If you are fighting for custody with your child's other parent, they may try to make you believe that the court will not give you custody because you are undocumented, especially if the other parent has a legal immigration status or is a citizen. This is not true, but there are things you should be aware of if you are an undocumented immigrant in a custody dispute.
Utah courts, when deciding custody, must do so based on "the best interests of the child." The law sets forth several specific factors it considers important, including the past conduct and moral standards of the parties and the extent of bonding between each parent and child. Immigration status is not listed as one of the factors. However, courts can weigh "any other factor the court considers relevant" when making a custody determination, and it is possible that a judge might take one parent's immigration status into account when evaluating custody.
Judges, even though they have great power over people's lives, are just people themselves. Like all people, they have bias. When considering what is in a child's best interests, a judge might be biased in favor of the dominant culture. In other words, a judge might assume that an English-speaking home with a citizen parent is automatically best for the child in question. The court may also be concerned about what would happen to your child if you were deported, and might unfairly assume that life in the United States is automatically preferable to life with you in your home country.If you plan to take your child with you in the event of deportation, your attorney could challenge this assumption.
If you would prefer that your child be raised in the United States even if it meant being separated from you, you can have your attorney prepare legal documents for your child's protection, such as a guardianship or power of attorney. Doing so would help to show that you are thinking ahead and planning for your child's needs, which supports the idea that you are a fit parent.
If you are an undocumented immigrant, you already know that the legal system holds more dangers for you than it might for a citizen. That makes it all the more important that you have someone protecting your rights as a parent and helping you look out for your child. You need an experienced family law attorneywho is sensitive to your immigration issues. You deserve the help of someone who is familiar with the law and the court system and who can fight for your rights and your child's well-being.