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Court finds 'undocumented' does not mean 'unfit' in custody case p2

We are continuing our discussion of an appellate case from a different state. It is important to remember that Illinois courts are not bound by decisions from other states, but they can still look to other states' opinions for guidance, especially on new or emerging issues.

The case is a custody dispute between a baby's young mother and the baby's paternal grandparents. A couple of things make their story unusual. For one, the father was not involved in the custody battle at all. More importantly, the mother is an undocumented immigrant, while the grandmother is a U.S. citizen and the grandfather is a legal resident.

Though both the baby's parents were minors when she was born, the mother was 18 when the custody question arose. The father's age -- he is two years younger -- may have been a factor in his non-participation in the suit.

The grandparents' petition cited a number of reasons that the child should be with them, apparently, with one being that the mother was "not legally in the U.S." The court analyzed the facts using the rules set in case law. Again, here in Illinois, the outcome could have been different.

In custody cases that pit a biological parent against a non-parent, the court will generally grant custody to the biological parent. If, however, there are "grave and weighty reasons" to do otherwise, custody will go to the non-parent.

These aren't just any "grave and weighty reasons." The court must find that one of the following three situations was true:

  • the parent was unfit or abandoned the child,
  • the child was in physical or emotional danger, or
  • "other extraordinary circumstances" existed

The court found neither of the first two applied in this case. As for the third, the court did not deem the mother's undocumented status as "extraordinary" enough to warrant taking her child away.

Again, the decision may reach only as far as this family. Anyone with questions about child custody should consult with an experienced family law attorney before moving forward.

Source: Star Tribune, "Immigration status not a factor in custody battle, Minnesota court says," Abby Simons, April 8, 2013

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