Last updated on April 8, 2021
The attorney for an undocumented immigrant mother says that the precedential value of any given child custody case can be difficult to determine owing to the fact-specific nature of custody disputes. Notwithstanding that, he hopes that a recent ruling in favor of his client will influence courts across the country when a parent’s immigration status is a factor in a family law custody matter.
In 2009, a baby girl was born to a then 17-year-old mother and her 15-year-old boyfriend. The mother was undocumented, with the father being a United States citizen. The young couple was not married at the time and did not wed subsequently.
The couple and their daughter stayed in Minnesota with the father’s parents. The grandmother is also a citizen, with the baby’s grandfather being a legal resident of the United States.
In late 2011, the mother and daughter moved from the family home following a disagreement, and the grandparents filed for custody of the child. A state trial court granted their request, giving them both physical and legal custody. The court’s rationale for doing so rested partly on the mother not being legally in the country.
A state appellate court recently reversed that ruling, granting custody to the mother and finding that the child’s best interests were served by her living with the mother. The court stated that the mother’s undocumented status was not an “extraordinary circumstance” that constituted a “grave and weighty” concern warranting a change in custody under state law.
Immigration rights groups are praising the ruling.
“It’s a great development in the law in that just because you’re undocumented doesn’t mean you therefore lose your kids,” said one advocate following the decision.
Although, as noted, a Minnesota state court appellate decision is obviously not binding in any Georgia court or other state court, supporters of the case say they hope it influences courts in all jurisdictions to disregard immigration status completely when they consider parental fitness.
Source: Minneapolis Star Tribune, “Immigration status not a factor in custody battle, Minnesota court says,” Abby Simons, April 8, 2013
