What Is Deportation?
The Immigration and Customs Enforcement (ICE) agency enforces Immigration laws and policies in the U.S. A person who is not a citizen and is present in the U.S. without legal status can be forcibly removed. Deportation, now known as “removal” is the process by which ICE removes a person who does not have the legal status entitling them to remain in the U.S.
Specifically, ICE may detain and deport undocumented immigrants who:
- Engage in criminal conduct;
- Threaten public safety;
- Violate their visa status, e.g. stay after their visa has expired.
A person who is an immigrant — legal or illegal — may want to know how their immigration status might affect a child custody dispute. Generally, no state directs courts to consider a parent’s immigration status as a factor in determining who gets custody of a child. Nonetheless, on occasion courts do consider a spouse’s immigration status in child custody cases.
In addition, if an undocumented immigrant is in detention or has been deported, then their status may well have an impact on a custody dispute involving their children who are citizens of the U.S. The parent may be unable to attend a custody hearing and may lose custody for that reason.
Does Law or Policy Protect the Rights of a Parent in Detention?
There are few, if any, laws or policies that protect the right of detained or deported parents in child custody proceedings. All parents have a right to be notified of custody proceedings relating to their children, to attend the proceedings and to receive copies of all court documents related to the proceeding. However, there are few policies that are in fact enforced to make sure that these rights are respected and available to detained or deported parents.
On the contrary, federal law may ensure that a deported parent’s rights as a parent are terminated. This is because federal law says that parental rights should be terminated if a child has not been in the custody of one of their parents for 15 of the past 22 months.
If a parent is deported, it is quite possible that they would not have actual custody of their child who remains in the U.S. for an extended period of time. They could lose custody to the other spouse who is able to be present and has custody for this reason.
Custody disputes between parents, e.g. in divorce proceedings, are determined by state law. While laws are different in each state, there are many similarities. Generally in order to regain parental rights, a state’s child protective service (CPS) implements a reunification plan for a parent who has lost their parental rights with respect to their child.
It would require that a parent have routine contact with their child and participate in family court hearings. This would be virtually impossible for a parent who has been deported or is in ICE detention.
A parent who has been detained may request their release so that they can care for their child while they are involved in an immigration process. However, ICE no longer provides its personnel with guidance for exercising their discretion to release a detainee in cases that involve a child who needs their care.
In addition, a directive issued in 2017 tells ICE agents to facilitate regular visitation for detained parents and their minor children. This is most likely going to be realized through video or teleconferencing. It further instructs ICE personnel to make it possible for a detained parent to participate in custody proceedings when required by a court.
However, no law or policy requires ICE to tell a state CPS that a parent is in ICE detention. A state CPS may not be able to locate and notify a detained parent about a child custody hearing.
Likewise courts and caseworkers may have no knowledge of the reason for which a parent does not attend a child custody proceeding even though it may be because the parent has been detained by ICE or deported. ICE officials may fail to grasp the extent of the impact that their enforcement of immigration law has on children who are U.S. citizens.
What Impact Can a Parent’s Deportation Have on a Child?
If a child is a citizen of the U.S. and their parent is deported, it can have a negative impact on their life. The parent who is deported may have been the primary breadwinner for the family. If their income is no longer available to the family, it can lead to eviction and other significant economic hardship. Among those could be the loss of reliable access to healthcare, especially if the deported parent had health insurance as a benefit of their employment.
Needless to say, the loss of a parent would also have a strongly negative effect on the child’s emotional and psychological well-being. Other family members experience a significant loss as well, which negatively affects their emotional and mental health. The loss of a parent to detention or deportation can greatly disrupt a family’s life.
Research shows that even the threat of detention or deportation has a negative psychological impact on a child that can adversely affect their academic performance and other aspects of their life.
What Are Possible Custody Arrangements?
It is important to understand that there are two kinds of custody. As noted above, one kind is physical custody, which is where the child lives. The other kind is legal custody which is who makes decisions about the child’s upbringing, e.g. where they go to school.
The arrangements for both kinds of custody might be shared or joint custody. Both physical and legal custody can be shared or joint. Or one parent can have primary physical custody which essentially means that the child lives with one parent and the other has visitation rights.
In general, if legal custody is joint, then both parents have equal input into decisions regarding their child’s upbringing. If physical custody is joint, then the child spends some amount of time living with each parent. In some states, if physical custody is shared, then the amount of time a child spends with each is divided on a 50/50 basis.
Parents thinking about divorce should remember that they can make their own agreement about custody and present it to the court. Unless the agreement is obviously unfair to one parent, the court generally accepts the agreement and includes it in the final divorce decree. In this way, the parents can avoid problems related to immigration status.
What About Language and Cultural Barriers in Court Proceedings?
Of course, immigrants may not be familiar with the American legal system and how to make it work for them. Language should not be a barrier in court, because a person who does not speak English would be entitled to an interpreter in court proceedings.
However outside of the courtroom, language could be an issue. An immigrant may not be able to afford to hire translators for legal documents and interpreters for discussions regarding their case.
Do I Have a Right to an Attorney in a Custody Hearing If I Am an Undocumented Immigrant?
Unfortunately, neither federal nor state law guarantees legal representation to people who need representation in a child custody hearing. The same is true for people who are in the custody of ICE and threatened with deportation.
Federal policy does require ICE to make it possible for parents in detention to participate in custody proceedings if they are a party to them. They should do this when required by the court in which the proceedings take place. However, it is not clear how a parent in detention might assert their right to be present in custody hearings. They may not even know that a custody hearing is going to happen.
If a parent is not detained, then they should be able to participate in custody hearings, however they would have to provide themselves with legal representation from an attorney. All of these issues can make it difficult for a nonimmigrant parent to participate in custody proceedings and assert their rights in a meaningful way.
What Can Happen When the Parent of a Child Who Is a U.S. Citizen Is Deported?
The fact is that many children who are U.S. citizens end up in foster care because their parents are deported. At least 5,100 children in 22 states, and probably more, are now in foster care, and if the current pace of deportations continues, the number is expected to rise.
Research shows that an estimated 5.5 million children in the U.S. have a parent who is an undocumented immigrant, and the vast majority of those children are U.S. citizens.
When a parent is deported, the opportunities they have to place their child with other family members or friends can be limited. Parents and family members are not part of the decision-making when it comes to the care and custody of their children. The result is that the children of detained and deported parents remain in foster care even if there is a chance that they could be cared for by their own family.
What Kind of Support and Resources Are Available for a Deported Parent?
There are non-profit charitable organizations that may provide legal aid and advocacy to immigrants who are in detention or facing deportation. For example, Catholic Charities USA has a large program that provides help of many kinds to immigrants, including immigration legal services and case management.
They may provide legal aid to a person in detention or facing deportation in a child custody case. Local legal aid societies may offer this type of assistance as well.
For help in finding a qualified legal representative, the American Bar Association provides information about immigration lawyers who may represent a person free of charge at http://www.americanbar.org. The U.S. Department of Justice ( DOJ) also provides a list of attorneys who provide representation for immigration cases free of charge or at a low cost.
The DOJ also offers a list of accredited representatives and charitable organizations that may help a person in need of legal representation for immigration issues or child custody proceedings.
Is Community Support Available for Affected Families?
There are numerous charities that can provide material support to families affected by immigration detention and deportation. Again, Catholic Charities USA is present throughout the U.S. and offers a variety of support services for immigrants in need.
Other charities that are noted for their services to immigrants are the Lutheran Immigration and Refugee Service and the International Rescue Committee. There are others as well.
At this website, https://www.feedingamerica.org/find-your-local-foodbank, a person can enter their zip code and find their local food bank.
Do I Need the Help of a Lawyer with My Deportation and Child Custody Issue?
Changes in immigration policy could go a long way to improving the situation for detained and deported parents and righting the wrongs to which they are subject in connection with child custody. For example, giving permanent resident status to the immigrant parents of children who are U.S. citizens if they do not have it would solve most of the problems.
Currently, however, if you are a documented or undocumented parent who is facing a child custody issue, you want to consult a family law attorney. You should make sure that your lawyer can explain how your immigration status might affect your child custody situation.
You may want to speak to an immigration lawyer also in order to have the most accurate information. LegalMatch.com can quickly connect you to both divorce and immigration lawyers who can set you up with all the information you need to protect your rights.
