She is in the process of becoming a permanent resident. They are not married. Both have resided in the US for 10 years. She has no record at all, two of the children are US citizens, born here. He is in prison (ICE) for simple assault against her and her 13 year old son from a previous relationship. They are fearful that if he is released he will harm them. They were under the impression that he would be deported, but he sent a letter saying he would be out in September and would come back, kick her out of the house, and take the two boys to Mexico. Can she get custody of the children without being a citizen? She speaks English and does not want to leave the US.
I agree with the other attorneys who have commented on this matter - namely that the best interest of the child standard will be applied and that immigration status alone should not have significant influence on what the court determines is in the children's best interests here. I would add, however, that I would hope that the mother involved in this matter has a skilled family law attorney helping her in family court.
Custody issues are resolved with the children's best interest in mind. The question is not who is "more legal" in terms of the immigration status. Considering his criminal record (if true) his chances of being awarded custody of the children are zero. He should be lucky to get supervised visitation rights. Don't worry. Can he abduct the children abroad? I doubt it.
Usually the court does not enter into issues in relation to immigration. However, if you are in danger of being deported, the court may take this into consideration in making its decision concerning the best situation for the children.
The domestic violence issue is much more pressing than your immigration status.
Hope this helps.
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