Maryland Court Addresses Immigration Status of Child in Divorce and Custody Proceeding

usa-maps-1055633-mWhen a married couple decides to go forward with a divorce, there will undoubtedly be many tough issues to address and resolve before the proceeding is over. Many spouses often choose to put off filing for a divorce, due to the emotional and financial repercussions. One of the most contentious issues tends to involve the children and how to allocate both physical and legal custody. There are many ways to sort through this part of the process, but no one solution is right for every family. Ideally, spouses will consult with their own legal counsel to ensure that their individual rights and interests are protected. The best course of action is to reach out to a Maryland family law attorney with a great deal of experience handling divorce cases.

In a recent case, the Maryland Court of Special Appeals was faced with a somewhat unique issue in a child custody and divorce matter:  whether to make “factual findings” under a federal immigration law, concerning the child’s potential status as a “special immigrant juvenile” or “SIJ.” Here, the parents were together since 1998 and got married in 2010 in Washington, D.C. They are both residents of Maryland. Their first child was born in 2000 and is a citizen of Ecuador, where she lived with her maternal grandparents. In 2010, the child moved to the United States to live with her mother. She is currently an “undocumented alien.”

In 2012, the couple separated, and the parties filed various complaints and responses for divorce and custody. During the hearing, the husband requested joint custody of the two younger children but agreed to allow the wife to have full legal and physical custody of the child who is an Ecuador citizen. Accordingly, the wife presented to the court a consent draft custody order, which awarded her custody and also included SIJ findings, so that her child could remain in the United States under SIJ status. Such an arrangement requires a circuit court order under Federal law.

The circuit court granted the divorce but did not render any factual findings concerning the child’s SIJ status. Ultimately, the wife appealed, arguing that the circuit court erred by failing to make SIJ factual findings during the divorce and custody proceedings. The court of appeals reviewed the applicable federal law, Maryland law concerning the extent of the circuit court’s jurisdiction, and case law from other jurisdictions that have addressed the same or similar matters. The court concluded that the circuit court had the authority to make decisions regarding the child’s custody arrangement.

Furthermore, the court pointed out that federal law delegated powers to state courts to make initial SIJ findings because these courts have the “expertise” relating to the care and custody of juveniles. That court elaborated by saying that the state court’s role in the SIJ process is to identify abused, neglected, or abandoned alien children within its jurisdiction, who are unable to reunify with a parent or be safely returned to their home country.

While state laws govern most child custody cases, there are situations in which federal law could come into play. As this case illustrates, divorce proceedings can vary a great deal from family to family. For this reason alone, it is extremely important to seek the assistance of an experienced family law attorney who is fully aware of the laws affecting your case. Parties anticipating a divorce are encouraged to contact Anthony A. Fatemi, an experienced Maryland family law attorney, for representation and legal guidance. Mr. Fatemi can be reached at (888) 519-2801 or (301) 519-2801.

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Maryland Court Reviews Father’s Efforts to Modify Child Custody Arrangement

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