As difficult as divorce is when dealing with immigration matters, child custody in Massachusetts may be even more contentious. The general principle concerning child custody was best stated in the U.S. Supreme Court case of Troxel v Granville,
"The interest of the parent in the kid's upbringing is of highest importance. Therefore, a person's immigration status is never the only factor which is taken into account when deciding whether or not he/she can get child custody."
Massachusetts law states that child custody is to be determined by the child's overall best interests. Some factors used in analyzing the best interests include a child's financial, medical, and educational situation.
Consider the hypothetical: Ivan and Lisa are divorced and have a child, Helga. Ivan must be deported back to Russia because he could not obtain the permanent resident status.
According to Troxel v Granville, it does not matter that Ivan is no longer a United States citizen because he is Helga's father and has a right to attempt to obtain custody of her. He must prove to the court that he is fit to take custody of Helga by proving that he can provide Helga with the money, good health, and education that she needs. He could prove this by proving how much money he would make back in Russia and prove what resources would be available for Helga's well-being if she goes back to Russia with her father.
Since the criteria for child custody in Massachusetts is the child's best interests, Lisa will try to show that she is better fit to take custody of Helga by proving that the resources she has available for Helga's well-being in America are greater than what Ivan has to offer. It will be a tough decision for the court as it must consider which would be in Helga's best interest.
In summary, being an immigrant or losing permanent resident status will not prevent the immigrant from obtaining custody of their child. They have every right just like the U.S. citizens to take custody of the child if they can prove that doing so is in the best interests of the child.
Should you be in the midst of a divorce or contemplating divorce, contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation consultation.