Does Immigration Status Affect Child Custody?

It is widely believed that more than 1 million undocumented immigrants currently live in Texas. A person’s immigration status can affect all aspects of their lives, including their rights in a divorce or family law matter. For example, an undocumented immigrant’s inability to maintain a stable job or residence may be cited as a factor in a child custody proceeding.

Houston Court Awards Father Custody After Mother Hides Children

Recently, a state appeals court here in Houston addressed just such a situation. The parties are a divorcing couple with three children. According to factual findings made by the trial judge, the mother left the marital home, without telling the father, and took the children with her. The mother did not inform the father of her new address. In addition, one of the mother’s relatives threatened to kill the father if he attempted to see his children.

The mother is also an “undocumented immigrant driving without a driver’s license,” according to the trial court. Although she has lived in Houston for nine years, she has never been arrested or subjected to a deportation proceeding.

Based on all this, the judge awarded primary custody–known as “managing conservatorship” under Chapter 153 of the Texas Family Code–to the father, while granting the mother “possessory conservatorship,” or scheduled visitation rights. Normally, the Family Code presumes the judge will name both parents as joint managing conservators for their children. However, the judge may “rebut” this presumption if the evidence establishes that naming one parent as a managing conservator would “significantly impair the child’s physical health or emotional development.” Ultimately, it is the “best interest of the child,” rather than the parent, which must guide the court’s decision.

In this case, the judge cited the mother’s actions in keeping the children from the father, as well as the fact she “has not established a residence of her own and has lack of stability, due to her immigration status,” as grounds for declining to name her as a joint managing conservator.

The mother appealed the judge’s decision, alleging it was an “abuse of discretion” to rule against her based on her immigration status. But the Texas First District Court of Appeals in Houston rejected that argument. The judge did not punish the mother because she was an illegal immigrant, the appeals court explained. Rather, the judge found she “could not meet the emotional and physical needs of their children as a joint managing conservator,” as illustrated by of her actions following her separation from the father. “Regardless of a parent’s immigration status or national origin,” the First District said, “preventing the other parent from knowing the whereabouts and welfare of the children…is evidence that rebuts the presumption in favor of appointing parents as joint managing conservators.”

Get Help From a Galveston Child Custody Lawyer

Divorce is always messy when children are involved. When one or both parents are undocumented immigrants, things can get even more complicated. But as the case above illustrates, the answer is not to run and hide with your children. Instead, you need to speak with an experienced Houston divorce attorney who can advise you on the proper legal steps to take. Contact the Law Offices of Tad Nelson & Associates today if you need help with a divorce or any family law matter.