The courts in Texas and most other states tend to favor a biological parent's custody rights over those of a non-parent. If, however, the parent is shown to be unfit or if there is concern that the child's health and safety would be negatively impacted in the parent's care, custody may be awarded to someone other than the parent. In one recent child custody case, a court considered whether a mother's status as an illegal immigrant impacted her fitness as a parent. In a decision lauded by advocates for immigrant's rights, the court ruled that the mother's immigration status was not relevant to the issue of custody.
The case involved a young mother, her four-year-old daughter, and her daughter's paternal grandparents. After the woman gave birth at age 17, she moved in with the parents of her 15-year-old boyfriend, the baby's father, where she remained for more than two years. In September 2011, following a fight with the grandmother, the mother moved out, taking the girl with her. The grandparents then filed a motion for emergency custody, arguing that the mother's status as an illegal immigrant precluded her ability to care for her daughter. The trial court agreed and awarded sole legal and physical custody to the girl's grandparents.
After learning about the decision, a law firm agreed to take the mother's case on appeal free of charge. In a unanimous decision, the appeals court reversed the lower court ruling and returned the girl to her mother, holding that the woman's immigration status did not make her an unfit parent or present any danger of harm to the child. The grandparents are now deciding whether they will seek further appeal.
It is important in any child custody dispute to have proper legal representation, and this is especially so when a parent's fitness is being called into question. A skilled family law attorney can help protect the parent's rights and maintain the focus on the child's best interests.
Source: Star Tribune, "Immigration status not a factor in custody battle, Minnesota court says," Abby Simons, April 8, 2013