In a recent child custody dispute that examines the role of legal citizenship, one state's highest court has ruled that parental rights trump citizenship status. This determination has set a precedent for custody battles that involve illegal immigrants in Illinois and throughout the United States.
The child's parents married in the United States several years after the man immigrated from Mexico. Just one year into their marriage, a judge ruled that the man must return to Mexico, as he was not a legal United States citizen. His wife went to Mexico with him and became pregnant. She returned to the United States, where she gave birth to their daughter.
When the girl was just 4 months old, she was removed from her mother's home because of allegations of abuse and neglect. The social service agency in charge of the girl's placement eventually terminated the mother's parental rights. In the meantime, the girl was living with foster parents who expressed an interest in adopting her.
The father had tried to re-enter the country to reunite with his family the same month that the girl was removed from the mother's home, but he was again sent back to Mexico. He petitioned the court for custody of his child, despite the fact that he had never met her. The social service agency claimed he had abandoned his child, arguing that it was in the girl's best interests to remain in the pre-adoptive home where she was living. The court refused to grant custody to the man, claiming that he wasn't able to provide for her financially.
However, the man appealed to the state Supreme Court. Not only did the Supreme Court decide in his favor, but the decision also questioned the social service agency's intentions, as one of the parents in the pre-adoptive home was an agency staff member. The little girl has since moved to Mexico to live with her father.
Source: The Washington Post, "Idaho girl whose custody battle played out in state courts reunited with father in Mexico," Associated Press, Aug. 23, 2012
Our firm handles child custody situations like the one discussed in this post. If you would like to learn more about our practice, please visit our Illinois child custody page.