Will The Court Consider My Immigration Status as a Factor in My Child Custody Case?

(California Family Code Sections 3011 and 3040)

Over the last few years, great strides have been made to protect the parental rights of immigrants.  While the system is not perfect, immigrants who are involved in child custody disputes are being afforded greater protection than ever before.  In October 2012, the California State Legislature passed Senate Bill 1064, which included provisions in the California Family Code that prohibit using immigration status against a parent when making child custody orders.

Immigration and child custody cases require the expertise of a skilled attorney.  If you are an immigrant who is going through a child custody case, do not hesitate to contact an experienced attorney to ensure that your rights are protected.

Best Interests of the Child Standard

In all types of child custody cases, the court will make a child custody order that it believes is in the best interest of your child.  Under California Family Code Section 3011, the courts will consider the following factors in determining what is in the best interests of your child:

1)      The age, health, safety, and welfare of your child;

2)      Any history of domestic violence or substance abuse by you or the other parent;

3)      The nature and amount of contact with both parents;

4)      You and the other parent’s ability to care for the child;

5)      The emotional relationship between you and your child, as well as between the other parent and your child;

6)      The duration and adequacy of your child’s living arrangements;

7)      Where your child goes to school; AND

8)      Your child’s involvement in the community.

The best interest standard does not include any mention of immigration status. Therefore, the courts should not consider your immigration status in making child custody orders.  Unfortunately, this does not prevent the other party in your case from raising your immigration status as an issue.  In order to ensure that your rights as a parent are protected, it is essential that you hire a skilled attorney who has experience with immigration and child custody cases.

Immigration status does not disqualify you for custody purposes

Under California Family Code Section 3040, in making an order granting custody to either parent, the court shall consider the best interests of the child standard, as well as which parent will ensure frequent and continuing contact with the other parent.  This section further provides that a parent shall not be disqualified for custody purposes based upon their immigration status.  Thus, if you are an immigrant who is going through a child custody case, the court cannot remove a child from your home, or grant the other parent custody of your child, based solely on your immigration status.

While the law no longer discriminates against individuals in child custody cases, based upon their immigration status, it is too soon to determine whether these news laws are actually protecting immigrants.  Our lawyers are well versed in the all child custody laws including those pertaining to the rights of immigrants.

If you are an immigrant who is going through a child custody case, you should contact an experienced attorney today.

This blog was written by Paul Wallin, Senior Partner at Wallin & Klarich | A Law Corporation

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