Immigration Status in Family Court
What should I do if the opposing party raises my client’s undocumented status in family law court as a way to argue jurisdiction?
Standing, or the right to bring a case in court as an interested party, in family law court is not determined on the basis of immigration status. Whether or not an immigrant has standing in family law court depends on factors such as the residence of one or both the parties seeking a divorce, residence of children involved in a custody case, or in the case of a protection order, where the victim resides or where the inter-family offense took place.
Immigration Status in Custody Cases
What should I do if the opposing party raises immigration status as a factor in custody in family law court?
Family law courts around the country vary in how they handle this issue and so the case precedent in this arena is not uniform. However, if your client is a victim of domestic violence, VAWA confidentiality provisions under the Violence Against Women Act, 8 U.S.C. § 1154, protect your client from having to release any information about their immigration case. The abuser in the case may be bringing immigration status up as a factor in custody as a tactic used by an abuser to weaken the immigrant victim’s custody case.
Therefore, if information about your client’s immigration case is being sought through the discovery process, you should file a Motion for Protection Order to prevent the disclosure of immigration related information. (see sample here)
Family Court and Immigration Enforcement
What should I do if the judge in a family law case is threatening to call the Department of Homeland Security (DHS) because my client is undocumented or Immigration and Customs Enforcement (ICE) comes to apprehend an undocumented immigrant in family law court?
VAWA confidentiality rules may apply here. If the case is in connection with a protection order, child custody, civil or criminal case involving or related to domestic violence, sexual assault, trafficking, or stalking, the courthouse is a protected location and ICE is instructed not to arrest an undocumented individual.
Affidavit of Support
Can I enforce an affidavit of support from an immigration case in a spousal support action?
Yes, but you must consider what implications this might have in the immigration case. For example, introducing immigration status into a civil case may expose your client having his or her undocumented status considered in a custody or protective order matter. One alternative is to use the document in negotiations but not in an actual court hearing. Alternatively, you may introduce the affidavit of support as evidence that the spouse can pay, but not try to enforce it.
Timing of Family Law Case
My client’s legal case involved both a family law case and an immigration law case. Which one should I file first?
There are several things to consider here and it may depend on the specific case circumstances. On on hand, it may make sense to file an immigrant’s family law case first, particularly if there is a need for a protection order or economic remedies a victim may be able to obtain as part of a protection order. On the other hand, early filing of an immigration case can offer an immigrant victim an extra layer of protection under VAWA Confidentiality rules. Also, filing for and obtaining immigration status can lead to other benefits that may strengthen one’s custody case, such as work authorization and the ability to financially support a child.
Creative Protective Orders
What creative protection order remedies should be included in protection orders for immigrant victims?
This may be case specific, but general creative remedies for immigrant victims to consider include the following:
Order the respondent:
- Not to contact immigration
- To continue victim’s immigration case
- To surrender the documents necessary for the victim to self-petition under VAWA, such as his social security number, birth certificate, alien number, documents that prove joint residence, birth certificates of children, etc.
- Supervised visitation if there is a risk of international parental kidnapping
- Attorney fees for immigration matters (if it is already revealed that there is an immigration case based on the abuse)