Does immigration status affect child custody determinations?

On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

If you are in the process of divorcing your spouse, your odds of receiving the outcome you want may depend on both New York law and your unique set of facts. If you have kids, though, the state has an interest in ensuring custody aligns with their best interests.

Having no valid immigration status can make life difficult. Even if you have legal permanent residency or some non-immigrant status, you may feel disadvantaged. Fortunately, your immigration status or lack thereof probably should not affect the outcome of your custody dispute.

Separate jurisdictions

With few exceptions, family-related matters fall within the legal jurisdiction of the court of New York. Immigration law, by contrast, is a federal matter. Therefore, you should not expect the judge in your case to wade into the technicalities of your immigration status. In most cases, you also do not have to worry about a New York judge reporting you to immigration officials.

The best interests of the child standard

When making custody determinations, judges in New York have a legal obligation to determine what is in the best interests of the children. To do so, they closely examine a number of factors. While this list is not complete, the following factors are likely to be relevant:

• Your relationship with your kids
• Your ability to provide a stable and healthy environment for your children
• Your history of substance abuse or criminal activity
• Your childrens’ educational and other needs

While New York law does not include immigration status in the factors judges must consider, some immigration-related matters, such as a deportation order, may run counter to the best interests of your kids. Ultimately, to increase your chances of receiving an acceptable custody arrangement, you may want to pursue legal counsel from both an immigration attorney and a family lawyer.

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