Child Custody and Non-Citizens

Child custody is complicated no matter the circumstances of a parent’s particular case. Not only are custody battles complex, but they are often stressful times for everyone involved. However, the stress and complexity of a child custody case can each take on new dimensions when one parent is not a U.S. citizen. A San Jose child custody attorney can help explain what options you have today.

Types of Custody Available for Non-Citizen and Citizens Alike

Even though one of the parents is not a U.S. citizen, they will be given a fair chance at gaining custody rights over their American citizen child or baby. The custody decision may be one of the following:

• Sole legal custody;
• Joint legal custody;
• Joint physical custody;
• Visitation rights; or
• No custody or visitation rights.

California courts will always choose a living situation and custody arrangement that is in the best interests of the child. This remains true even when one parent is not a U.S. citizen. As such, it is important to understand this vital question: “what are the best interests of your child?” The court will analyze the following factors (and more) to come up with a decision:

• The ability of each parent to financially provide for their child;
• The physical safety of the living situation each parent will provide;
• Proximity to quality education and medical services;
• Which parent has been the primary caregiver for the child;
• What family members the child will be living with or close to;
• What other support each parent will have to raise their child;
• The ability of each parent as a caregiver; and
• What the child’s preference is if they are old enough.

Obtaining U.S. Citizenship for Your Child

According to USCIS, if your child was born outside of the U.S. but currently lives in the U.S., if they are under 18 they may acquire citizenship by:

• Having at least one U.S. citizen parent;
• Being a lawful permanent resident; and
• Living with a U.S. citizen parent who has legal and physical custody.

As such, if you want your child to become a U.S. citizen, it is in your best interest to ensure that they end up living with the parent who has U.S. citizenship. And, that parent must have physical and legal custody.

A San Jose Family Law Attorney Can Help

The Bay Area is home to one of the largest immigrant populations in the country, according to the Pew Research Center. As such, we have vast experience helping immigrant and non-citizen families overcome difficult decisions such as custody and divorce. Feel free to reach out to the skilled San Jose child custody attorneys at the office of Gemma V. Reyes today for assistance.

Sources:

https://www.uscis.gov/us-citizenship/citizenship-through-parents
http://www.pewresearch.org/fact-tank/2018/09/14/key-findings-about-u-s-immigrants/