Written by attorney Brian David Lerner

Documenting the Two-Year Joint Residency and Legal Custody Requirements in Adoption Cases

“Legal custody" refers to the “assumption of responsibility for a minor by an adult under the laws of the state and under the approval of a court of law or other appropriate government entity." 8 CFR §204.2(d)(2)(vii)(A); 9 FAM 42.21 N12.3. The two-year legal custody requirement can accrue before the adoption if a court granted legal custody of the child to the petitioner. 8 CFR §204.2(d)(2)(vii)(A); 9 FAM 42.21 N12.3. If the petitioner did not obtain legal custody before the adoption, then the date of the adoption decree is considered to be the commencement of the two-year legal custody period. 8 CFR §204.2(d)(2)(vii)(A); 9 FAM 42.21 N12.3. A sworn affidavit is insufficient to document legal custody. It must be issued through a court document 8 CFR §204.2(d)(2)(vii)(A); 9 FAM 42.21 N12.3.

The BIA has recognized completion of the required two years’ legal custody based on customary adoption—where the petitioner established that the child was considered adopted under the laws and customs of the country of the child. Petitioners also must prove that they have resided with the child in a parent/child (“familial") relationship for at least two years. Evidentiary support for joint residency is often at issue in petitions for adopted children. The regulations provide some guidance on admissible evidence, indicating that school records, medical records, and religious documents, as well as affidavits, can be accepted to support the claim that the petitioner has lived with the child. 8 CFR §204.2(d)(2)(vii). U.S. tax returns showing the child as a dependent The child will need a taxpayer identification or Social Security number. and proof of insurance also may be provided as evidence.

The evidence should provide information relating to the physical living arrangements of the child, where the petitioners resided, and where the birth parents resided for the two-year period. 8 CFR §204.2(d)(2)(vii)(B); 9 FAM 42.21 N12.4. Note that providing sufficient evidence to prove the custody and residency requirements at the filing of the I-130 may lead to a waiver of the interview requirement for younger children. If the child resided with the birth parents during the two-year period, the burden of proof falls on the petitioner to show that the petitioner, and not the birth parents, exercised primary parental control. “Evidence of parental control may include, but is not limited to, evidence that the adoptive parent provided financial support and day-to-day supervision of the child, and owned or maintained the property where the child resided." 9 FAM 42.21 N12.4.

When both the legal custody and joint residency requirements have been met, the adoptive parent can file an I-130 petition for an immediate relative and supporting documentation with USCIS. Note that the regulations do not require that the petition for an adopted child immediately follow completion of the two-year joint residency and legal custody requirements.

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