IMMIGRATION STATUS AND ISSUES WITH DIVORCE AND CHILD CUSTODY
DIVORCE
Generally, immigration status has no bearing on divorce. Marriage and divorce are state issues: all 50 states have different rules on how to get married and how to get a divorce. Property settlement is decided by a judge, a master, a mediator or by agreement on who gets what (house, cars, money, jewelry, etc.). Even if a spouse is deported, he or she still has rights to martial property and may participate in the divorce remotely.
The only time divorce affects immigration status is when a green card or visa is in jeopardy. For example, divorce before conditional residency expires, divorce due to abuse or extreme cruelty of a U.S. spouse or Legal Permanent Resident, and divorce as part of a family-preference category. Sometimes, the contents of a divorce petition may be scrutinized when trying to hold on to immigration status. USCIS officers will look at the residences, date of separation and allegations of fault-based grounds. In addition, divorce affects the waiting period for naturalization of foreign-born spouses. A divorced immediate relative will need to wait five years, rather than three years, for citizenship.
Any competent adult – citizen, green card holder or undocumented person – may seek a divorce. Most states, including Pennsylvania and New Jersey, offer a no-fault divorce. As long as both spouses sign the paperwork, a mutual divorce will be granted.
CUSTODY
Similar to divorce, child custody is controlled by state. Every state is very different in implementing child custody rules, but most states follow the same motto of ‘best interests of the child.’ This motto means the courts will put the child or children first, and parents second. Teenage children sometimes have the ability to speak for themselves on who they want to live with.
There are two types of custody: legal and physical. Legal custody involves making important decisions on behalf of the child, such as medical, travel, legal and educational decisions. Every parent, absent a court order, has the right to make legal decisions for their children. If parents cannot agree on legal decisions, a judge, master or mediator will decide. Physical custody involves where a child lives. There are many types of arrangements involving physical custody: sometimes a child will live full-time with one parent, and have visitation with another on weekends or every other week. Again, if the parents can’t decide then a judge, master or mediator will decide.
Courts generally don’t inquire into the immigration status of parents. Immigration status has no bearing on a person’s ability to parent his or her child. Of course, concerns come up if a parent has a removal order or is under threat of removal, but these speculative future concerns generally do not – and should not – be relevant.
Located in Upper Darby, PA, I practice throughout the Greater Philadelphia Area. If you are located in suburban Bucks, Chester, Delaware, Lehigh, Montgomery ,York and Philadelphia Counties, or Atlantic, Burlington, Camden, Gloucester, Mercer or Ocean Counties, contact me today for a consultation regarding your or your loved one’s case today.