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Contesting Custody as an Undocumented Immigrant

by | Oct 30, 2020 | Custody

Hearing the car pull into the driveway, Lucas reluctantly gets up from his living room chair and slowly makes his way towards the front door of his Sandy Springs townhome. He flips the porch light on and through the window, catches a glimpse of his estranged wife, Charlotte, unloading their five-year-old daughter, Paige, from her SUV. The hairs on the back of Lucas’s neck stand at attention, like those along a dog’s spine when the dog senses an immediate threat. There’s a fight coming.

Daddy Paige exclaims, then runs and springs into her father’s arms as Lucas steps out on to the porch. Through Paige’s curly hair, Lucas spots Charlotte, trudging up the walkway, struggling with Paige’s overnight bag.

You’re late, as usual Lucas says, addressing Charlotte.

Oh, give me a break. Are we really going to do this every time? Charlotte retorted, throwing Paige’s overnight bag at Lucas’s feet.

It’s 10 o-clock at night and Paige’s bedtime is at 8 o-clock. I thought we agreed on 5:30 as the return time.

I’m her mother, I can keep her with me for as long as I want! Charlotte spat back, her voice increasing several octaves. Sensing the escalation of this exchange, Lucas ushered Paige inside the house and instructed her to head up to her room. Closing the door behind him, he turned back to the squabble at hand.

Charlotte, she is on a strict schedule, Lucas started to reason until being cut off.

She’s on your schedule, Lucas. Who put you in charge anyway? Charlotte asked rhetorically.

You, when you abandoned us for your boyfriend! Lucas could feel his voice growing louder and louder with each word.

That’s it! I am so sick of having this conversation. Tomorrow morning, I am filing for divorce and asking for full custody of Paige. You cannot keep treating me like this and any Judge will agree. Charlotte stated dryly.

Who is going to give you custody? You can’t even take care of yourself! Lucas screamed.

And what makes you think a Judge will give you custody? You’re an illegal.

What does that have to do with anything? And for the record, the correct term is undocumented. A person cannot be illegal. Lucas was seething at this point.

Lucas, if you fight me on custody, I swear I will report you to ICE. You will be deported, and you will never see Paige again.

This sad exchange is real for many people struggling to co-parent as an undocumented immigrant. When it comes to contested child custody cases, some litigants are prepared to drag each other through the mud if it means winning the grand prize, no matter the toll on the child. Everything is on the table if it means gaining an advantage over the other party in a highly contested action. This includes immigration status.

To what extent does the immigration status of a parent come into play for a contested custody matter? The ultimate question to be addressed by a Judge presiding over a custody case is what arrangement would be in the best interest of the child, but more specifically what will best promote the child’s welfare and happiness. O.C.G.A. §19-9-3(a)(3) codifies several of the factors a Judge may take into account when making a custody determination, including but not limited to: the parent=s ability to provide love and affection to the child; the capacity of a parent to provide the child with day-to-day needs and basic care; and, the stability of the family unit of the parent.

A factor which is noticeably absent in the statute is the immigration status of each parent. Referring back to the hypothetical above, should Charlotte bring up the fact that Lucas is an undocumented immigrant to the Judge during the ir custody trial, the Judge may find this factor immaterial as it relates to the ultimate question of what is in the best interest of Paige. Though arguably, the Judge could consider the fact that Lucas runs the risk of being detained by ICE at a moment=s notice and face deportation, which calls into question Lucas’s ability to provide Paige with continued stability. The Judge could also see this as evidence of Charlotte’s inability to co-parent with Lucas and award custody to him on that basis.

There are many morals to this story. The landscape is a minefield. If you are walking or running through this minefield, get help. Get help before it gets even more out of control.