New Jersey’s Superior Court Appellate Division recently addressed a growing family law concern in New Jersey’s immigrant communities: Is a parent’s immigration status relevant in child custody proceedings?
The child—Oliver—was born in Guatemala in 1999. Oliver’s childhood in Guatemala was far from one where he was able to enjoy sports, parks, fun, computers, reading, and games, or receive an education—it was the very opposite.
Oliver’s father disappeared shortly after Oliver was born. He left Oliver and his six siblings with their severely diabetic and unemployable mother. Each child had to fend for himself or herself in a country that continues to lack any sense of political or economic security. Oliver began farming fields when he was six years old. He rarely attended school and suffered severe rebukes at the hand of his mother when he asked to play or attend school rather than work long hours each day.
In 2005, Oliver’s adult brother (“Brother”) unlawfully crossed the Mexican border into the United States and moved to New Jersey. He remains undocumented, but is seeking protection from deportation, claiming a fear of return to Guatemala. Brother’s immigration future is uncertain.
Ten years after his brother, frustrated by the denial of his right to an education and overwhelmed by the forced labor, Oliver, age 16, fled Guatemala in November of 2015. Oliver trekked north through Mexico, slept on the streets and in homes of strangers, ate and drank little, was alone and scared. After a month of traveling, Oliver made it to the border and, in the early morning hours of December 10, 2015, Oliver swam across the Rio Grande River into the United States. He then traveled to New Jersey, where he reunited with his brother.
Soon after Oliver arrived in New Jersey, his brother brought an action in the Family Part, seeking custody of Oliver, as a predicate to obtaining Special Immigrant Juvenile Status (“SIJS”) for Oliver. SIJS is a designation provided in federal immigration law for juveniles who have entered the United States, have no lawful status, and are unable to reunite with either parent because of abuse, neglect, or abandonment. If granted SIJS, the child has a pathway to obtain lawful permanent resident status, and later become a naturalized American citizen. To qualify for SIJS, a state family court must find that the child meets certain enumerated criteria.
One SIJS requirement is that the child is placed into the custody of an agency or an individual appointed by the family court. For Oliver, the individual seeking appointment was his brother. The Family Part denied the custody petition, finding, in part, that it was not in Oliver’s best interests to be placed in the custody of a person who is an undocumented immigrant. The risk of deportation of an undocumented immigrant, the Family Part held, weighs against the best interests of the child.
The Appellate Division disagreed, noting that the possibility that deportation “may” occur at some point in the future was improperly considered:
[T]he [Family] court found it was not in Oliver’s best interest to be placed in [Brother’s] custody because, as an illegal alien, plaintiff may be deported. However, first, there is no evidence deportation was imminent or that any deportation proceeding even had been commenced. Second, [Brother] has initiated an action to become a lawfully-present alien, specifically, an alien granted asylum. Third, even if [Brother] were deported at some point in the future, Oliver may by then be emancipated.
The Appellate Division held that the Family Part’s concerns about Brother’s immigration status, or that Brother is “presently an undocumented immigrant” were unfounded in the record, because Oliver’s brother had “initiated an action to become a lawfully-present alien.” While the Appellate Division’s holding was sympathetic and led to a result favorable for Oliver, the decision is certain to result in unintended consequences. In the past, a parent’s immigration status was not a dispositive fact when evaluating the best interests of a child. The Appellate Division has permitted the “immigration status” door to open, which is sure to make immigration law a significant consideration in family courts across New Jersey when making best interests determinations.
For Oliver’s brother, the Court’s reliance on his start of “an action to become a lawfully-present alien” was sufficient to overcome his undocumented status concerns. But the Appellate Division, left open the question as to undocumented immigrants who have not taken any affirmative action towards securing lawful permanent resident status. Further, what other affirmative immigration relief actions would sufficiently overcome deportation related concerns as they relate to the best interests of the child? And, how much information must a US Citizen parent introduce to establish the undocumented immigrant’s status and imminent deportation?