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Immigration Status and How It Affects Child Custody

December 29, 2020

Est. Reading: 2 minutes

Though civil and criminal law matters frequently intersect, issues associated with family law and immigration statuses, respectively, can combine contentious and emotional legal circumstances. As soon as a marriage or relationship goes south, unsavory spouses occasionally use the immigration status of the other spouse against them. 

Conversely, family courts recognize the importance of resolving disputes involving divorce, spousal maintenance (alimony), child support, and parenting time (physical custody). Therefore, individuals living in the U.S. generally have full access to family courts when deciding such matters. 

Best Interests of the Child

Child custody hearings and drafting parents' plans are not the right venues for parents to hash out their differences. Parenting time is not something to be “won;” rather, courts look to the best interests of the child to determine the optimal parenting plan. 

There are 11 statutory factors Arizona courts consider that, collectively, make up the “best interests of the child.” These factors cover things like the relationships between children and their parents, siblings, and other family members; the likelihood of each parent to cooperate with the parenting plan, and any domestic violence or child abuse. Nowhere in that section of the Arizona Revised Statutes will you find “immigration status” mentioned. 

an image of a gavel and models representing a family on a desk

Using Deportation Threats

Bad actors might claim that someone who is in the U.S. illegally would not be able to provide a stable household or routine for the children in question. While the threat of removal (deportation) is always present for those here illegally, this usually does not persuade judges to award the other parent custody. In other words, the lack of legal status for an individual in the U.S. does not mean he or she will imminently leave the country. 

Additionally, threats to initiate removal proceedings against a parent in the U.S. unlawfully is not an acceptable strategy to gain custody of children. Attorneys who threaten criminal proceedings in order to be successful in civil cases (like divorce or child custody matters) may be disbarred. 

Potential for Fraud

When spouses are only a mere criminal charge away from being removed from the U.S. and losing parenting time, fraud can ensue. For instance, some spouses may allege that a U.S. noncitizen only married them for a green card. Even if that is not true, the noncitizen could be looking at an annulment or, at the very least, removal. If an annulment goes through, the noncitizen could lose legal standing to parenting time. 

Conclusion

Lack of legal immigration status can be exploited in order to enhance a parent’s standing in situations involving parenting time. While those not in the U.S. legally may not face immediate consequences when it comes to family law matters, the playing field is already titled against them. 

Monahan Law Firm has experience handling complex family law matters, including those involved with visas and immigration situations. Need more information on how we can help you? Give a Glendale child custody attorney a call at 623-385-3190 today.

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Attorney Patrick Monahan

Patrick Monahan

Patrick Monahan is the managing partner of Monahan Law Firm, PLC. Patrick began his legal career practicing real estate, construction, and general business litigation.
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