The state family court and the immigration court are completely different systems that sometimes deal with the same cases. Each court makes its own decisions based on different laws, rules and objectives, producing some inconveniences in the moment of deciding a case. A non-citizen often must obey contradictory rulings from both courts.
Obtaining Child Custody
When a couple with children has recently divorced or separated, they usually try to fight for the right to custody of their children. The family courts make those decisions which are mostly based on the parent's physical, monetary, and mental conditions to raise their children and the bonds between the choldren and their parents. The specific laws dealing with child custody are defined according to the state where the child and parents live, but in most states, even a non-American citizen has the right to fight for the custody of his child. The family court takes into account the conditions of a non-citizen, but in most cases, it will give a non-citizen at least the right for child visitations, the right to see and spend time with the child and it will also probably rule for child support.
Types of Child Custody
There are various types of child custody based on the time a parent will spend with the child and monetary support, such as joint custody, sole physical custody, joint physical custody, sole legal custody and joint legal custody.
In any of these cases there are privileges for the parents and also responsibilities. If a non-American-citizen receives any of these types of custody, it means she also needs to share in the related responsibilities.
Joint Custody and Sole Custody
If a non-citizen has sole physical custody of the child, which means he has total custody over the child, he has the right to take the child back to his country with him should he be deported.
If a non-citizen has joint custody of the child, she has to share the custody with the other parent, who is probably a citizen. In such a situation, the non-citizen can not legally take the child out the country.
Illegal Immigrants and Child Custody Decisions
In some cases, if a non-American-citizen has been given visitation rights and requires child support, an immigration judge could rule to give this non-citizen permanent residency. However, a higher court could eventually dispute this decision, especially in cases of illegal immigrants for whom a judge has already ordered deportation. If this happens, the non-citizen would have to go through new processes in the immigration court to get a new ruling. Since there are no published court decisions for immigration judges to follow when immigration and family law intersect, the judge must base his decision on his perception of the case.
For a non-citizen in this situation, the best solution is still to hire a good immigration lawyer and try to demonstrate how the separation from one of the parents could negatively affect the children.