Immigration is a hot-button political topic, particularly these days, and for that reason people are often afraid to talk about their immigration status. That’s a shame because it’s important for many parents to understand how immigration status can be relevant to child custody issues.
Can a non-citizen petition for child custody?
If you are in the United States, you can file a petition for child custody if you are not a U.S. citizen. Federal law controls immigration, and under federal law, your immigration status does not affect your ability to petition for custody of your child. Even if you are an undocumented person, you can legally petition for custody of your child.
What’s more, neither the parent’s nor the child’s immigration status affects eligibility for child protection services. Texas must provide services for family-based protection (including domestic violence-related protection orders), reunification and more regardless of the immigration status of the child or either parent.
In practice however, non-citizens must be careful in their interactions with the legal system. It’s a good idea for non-citizens to consult with attorneys before they file any petitions or take any actions in family law.
What if one parent is out of the country?
Things get even more complicated when one parent is either currently out of the country or planning to go out of the United States — particularly if the parent wishes to take the child with them.
Generally speaking, if a parent has sole custody (also known as sole managing conservatorship) they can take their child with them when they leave the United States. But a parent who is subject to a child custody order must follow the terms of the order if they wish to take the child abroad with them. Typically, these orders say both parents must consent to one parent taking the child out of the United States. If one parent objects, they have the right to request a hearing and let the court decide whether to allow the trip.