How Can Immigration Status Affect a Child Custody Decision?

Anyone who pays attention to the news knows that immigration has been a hot topic in recent years. Millions of unauthorized immigrants live in fear of deportation, especially with Immigration and Customs Enforcement (ICE) increasing the number of proceedings they initiate. No longer is the focus only on deporting immigrants who pose a threat to the public; now ICE has been directed by the current administration to go after almost any unauthorized immigrant.

To add to an already stressful situation, many undocumented immigrants also face divorce and other matters in family court. First, the sole prospect of interacting with any court may be terrifying, out of concern that the court may report your status to ICE. In addition, many parents believe they may lose all custody rights to their children based on their immigration status, especially if the other parent is a U.S. citizen or legal immigrant. Fortunately, many of these fears are unfounded due to California’s immigrant-friendly laws and policies regarding immigration status and child custody.

California Custody Laws

Many state courts will not consider immigration status in custody determination as a general policy. However, California takes it one step further and actually codifies this policy into its custody law. The law simply and clearly states the following: “The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody.”

Instead, the law requires courts to base custody decisions on best interests of the child. The law gives the court full discretion to decide whether parents should share joint custody, one parent should have sole custody, or a non-parent should instead receive custody of the child. Many factors play a role in the court’s decision regarding the best interests of a child, including:

  • Each parent’s willingness to foster a meaningful relationship between the child and the other parent
  • The individual’s ability to provide a stable household
  • The individual’s ability to meet the emotional and physical needs of the child, including any special needs
  • The child’s safety in the home environment and ability to be free from abuse

The court can consider any circumstances it finds relevant to the situation at hand, however, it will not terminate custody rights based on immigration status alone or report the parent to ICE. There can be complications if ICE initiates deportation proceedings against the parent in the future, but you should not fear a child custody case in itself.

Contact Our Orange County Family Law Attorneys as Soon as Possible

At the family law firm of Razai & Nefulda, APC, we represent parents in custody matters with all different circumstances and immigration statuses. If you are facing divorce or a child custody case, you need skilled legal representation as soon as possible to ensure your parental rights are fully protected. Please do not hesitate to call our office in Orange at 714-663- 9900 or in Newport Beach at 949-222-5381. You can also fill out our online contact form and someone will be in touch with you.