Child Custody When One Parent is a Non-U.S. Citizen

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsIt is common knowledge that nearly thousands of foreign citizens migrate to the US every year in search of a better livelihood. Even though the process helps in uplifting the social, political and economic status of these immigrants, problems can arise when complicated issues of domestic violence, divorce and child custody come into play.

Dealing with International Clients

It is common for foreign clients of American lawyers to be faced with numerous strange predicaments. However, the common ones may include dilemmas such as the parent wanting to shift base to a foreign country and taking the child along either at the time of separation or after divorce. Alternatively, the parent may have already taken the child with him/her and the spouse is demanding for the child to be sent back. Sometimes, one parent is unwilling to trust the law and order of the foreign country with regards to custody cases.  So it is important to first know whether the country that the other parent is from recognizes the “Hague Convention” with respect to the international law for child abductions.

What is the essence of child abduction law and custody jurisdiction in such cases? A parent is barred from gaining any practical or legal advantage by moving the child’s base to a new country or state. It is imperative for the couple seeking separation or divorce to register the case in the court located in the habitual residence of the child prior to moving.

General Principe for Child Custody

In case where a US citizen marries an immigrant, child custody cases can get quite complicated. But the general principle with regards to child custody as spelt out by the U.S. Supreme Court in one of its notable cases is this:

The interest of the parent in the kid’s upbringing is of highest importance. Therefore, a person’s immigration status is never the only factor which is taken into account when deciding whether or not he/she cane get child custody.

The custody of the child is determined by the overall best interests of the child. This typically includes his/her medical, educational and financial situation.

Consider a hypothetical case wherein a couple is fighting for child custody and the father is originally from Russia whereas the mother is US citizen. The father, despite being a Russian citizen has every right to try and obtain the custody of his child. He may do so by proving to the court that he is capable of providing the child with education, financial support as well as good health. He can find a way to show to the court that is he would be able to make a certain amount of money once back in his own country and also highlight the resources that would be made available to ensure the child’s overall well being in Russia.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

The Effect of Divorce on Immigration Status

Posted by: Gerald A. Maggio, Esq.

Riverside divorce lawyers; California Divorce MediatorsSo, you are not from the U.S. but getting divorced? It could be a big problem because it could affect your immigration status unless you are already an U.S. citizen.

There are many questions which people ask during a divorce. One important question is the question of green card and immigration status. If you are in the process of getting your green card but are also getting divorced, what then? Will your application be rejected?

Divorce effect on conditional permanent residence

You receive a conditional permanent residence when, the time of admission, you have been married for not more than two years. If you want to attain permanent residency, then you have to apply to the U.S. Citizenship and Immigration Services (USCIS) before the second year of your immigration admission. If, at the time of application, you are still married then you will become a permanent resident. But if your marriage fails then you can be liable for deportation.

Immigration applications after a divorce

There are strong laws that govern the status of an immigrant during a divorce proceeding. If you or your spouse are both immigrants, then you need to first get permanent residential status before you can get married on U.S. soil. If one of you is a U.S. citizen, then it becomes easier for the other to become a permanent resident.  In the case of a divorce, if you are still an immigrant when you filed for your divorce, chances are your residency status will be terminated and you will be sent back to your home country. But if you are separated and not yet divorced then the situation is not that grim. Because you are still legally married to one another, the court will strongly consider this fact.

Staying in the U.S. after a divorce

In case you choose not to withdraw your immigration application, you can be granted conditional residency. But it all depends on which state you are in and what the state laws say. The conditional residency is possible through a waiver.

If your marriage was based on good faith, you might not get that green card you applied for but you might get a conditional residency. For getting a green you must have stayed in the U.S. for a certain amount of time or have married an U.S. citizen. Situations are not always bad. It depends partly on your luck and partly on state laws.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.