All biological parents have the right to petition for custody of their child or children whether they have ever been married to the other parent, or not. Additionally, all parents have the right to do so regardless of their resident status. The legal process for doing so is the same for aliens as it is for citizens. An alien “means a person who was born in another country and has come to this country, and is here residing either permanently or temporarily.” State v. Lyons, 67 Cal. 380, 7 P. 763, 381 (Cal. 1885); See also Lynch v. Clarke, 1 Sandf. Ch. 583 (1844). In the context of the judicial system, aliens receive treatment very similar to the treatment that U.S. citizens receive. This is because the Fourth, Fifth and Fourteenth Amendments of the United States Constitution apply to aliens residing within the United States. See Plyler v. Doe, 457 U.S. 202 (1982), United States v. Verdugo-Urquidez, 494 U.S. 259, 260 (1990). As such, the courts guarantee aliens the right to due process and equal protection of the laws.
Therefore, a person seeking child custody in Utah is situated the same (with respect to the law) whether that person is a citizen or not. Any person seeking child custody in Utah would first need to determine if Utah has jurisdiction to make such a determination. Utah Code § 78B-13-201 provides that Utah has jurisdiction if following are met:
a) Utah is the home state of the child when the child custody determination begins, or was the child’s home state within 6 months prior to that date as long as one of the parents continues to live in the state when the determination begins.
b) Another state’s court does not have jurisdiction or else has declined jurisdiction because it has determined Utah is the more appropriate forum.
i. The child and at least one parent has a significant connection with Utah (more than just physically being in the state).
ii. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
c) Any other state’s courts that may have otherwise had jurisdiction have declined to exercise jurisdiction on the ground that Utah is the more appropriate forum to determine the custody of the child under Utah Code § 78B-13-207 or 78B-13-208 (i.e. the other state is an inconvenient forum, parties seeking determination have engaged in misconduct, emergency reasons such as abuse or mistreatment, etc.)
d) No other state would have jurisdiction under the above (a. b or c)
Let’s see how this works with a few examples.
Example 1: John and Helen are both aliens living and working in Utah. They are not married when they give birth to baby Emma. When Emma is one year old, the couple breaks up and John becomes concerned about his right over Emma. May he ask Utah to determine child custody over Emma?
Utah is Emma’s home state (so meets a). No other state would have jurisdiction over these parties (so she meets (b), (c) and (d)). Both parents live, work and care for Emma in Utah (so she meets (b)(i)). Emma was born here and all actions concerning her occurred in Utah (so she meets (b)(ii)). Utah would have jurisdiction. John may petition for a child custody determination in Utah.
John and Helen’s situation would be exactly the same in the above scenario if either John or Helen were U. S. citizens.
Example 2: Jim is an alien living and working in Utah. Barbara is an alien living in California. Barbara met Jim when she was visiting Utah. They are not married when Barbara gives birth to Jim’s baby, Rachel. Rachel is born in California. Barbara brings Rachel to visit Jim every other month or so. When Rachel is two years old, the couple has a falling out and Jim becomes concerned about his rights over Rachel. May he ask Utah to determine child custody over Rachel?
Utah is not Rachel’s home state (so she does not meet requirement (a)). California could have jurisdiction over these parties (so does not meet b, c and d unless California declines jurisdiction on one of the provided grounds). Jim lives and works in Utah and Rachel has regularly visited her biological father in Utah (so possibly meets (b)(i)). Rachel was born in California and nearly all actions concerning her occurred in California (so does not meet (b)(ii)). Utah would not have jurisdiction unless California declined. Jim would likely not be granted jurisdiction to seek a child custody determination in Utah.
Jim and Rachel’s situation would be exactly the same in the above scenario if either Jim or Rachel were U. S. citizens.
Example 3: Tom and Sally are in nearly the exact same scenario as Jim and Rachel except that it is Tom who lives in California and Sally who lives in Utah, and Sally gave birth to baby Jane in Utah. May Tom ask Utah to determine child custody over Jane?
Utah is Jane’s home state (so she meets (a)). California likely does not have jurisdiction over these parties (so she meets (b), (c) and (d) but may or may not need California to decline jurisdiction on one of the provided grounds). Sally lives, works and cares for Jane in Utah (so she meets (b)(i)). Jane was born in Utah and nearly all actions concerning her occurred in Utah (so she meets (b)(ii)). Utah would have jurisdiction for a child custody determination in Utah. Tom may seek a child custody determination in Utah even though he lives in California and has never lived in Utah. Utah Code § 78B-13-201(3) provides, “Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination.”
Tom and Sally’s situation would be exactly the same in the above scenario even if either Tom or Sally were U. S. citizens.
Example 4: Sam and Penny are both aliens living and working in Utah. They are not married when they give birth to baby Mike. When Mike is one year old, the couple breaks up and Penny moves with Mike to California. Sam becomes concerned about his rights over Mike. May he ask Utah to determine child custody over Mike?
Utah was Mike’s home state (so, as long as Sam begins proceedings before Mike has been gone longer than 6 months, meets a). Depending on how much times passes before Sam files, California may or may not have jurisdiction over these parties (so meets b, c and d but may or may not need California to decline jurisdiction on one of the provided grounds). Sam lives and works in Utah and Mike spent the first year of his life in Utah (so he meets (b)(i)). Mike was born here and all actions concerning his first year of life occurred in Utah (so he meets (b)(ii)). Utah would have jurisdiction and Sam may petition for a child custody determination in Utah.
Sam and Penny’s situation would be exactly the same in the above scenario even if either Sam or Penny were U. S. citizens. If Sam waited until a year after Mike left, however, this would change the determination and California would have to decline jurisdiction on one of the provided grounds.
If Utah is found to have jurisdiction, then the child custody proceeding is the same whether one or both parents are aliens. The court uses the same “best interest of the child” guidelines to make its determination.
So, does it ever matter if one parent is an alien? Yes. For one thing, even though as a matter of law both parties are treated the same that doesn’t mean it will play out that way. Being an illegal alien – in particular – can create unexpected problems that can affect child custody outcomes.
In State, in Interest of KJ, 2013 UT app 237 (Utah 2013), a mother who was an illegal immigrant had her infant child taken away from her by child protective services after it received emergency medical treatment for injuries caused by abuse. Child protective services created a parenting plan that the mother was required to follow in order to regain custody of her child. Part of the plan required that the mother get independent housing because she lived with others (who were allegedly responsible for the abuse) and secure employment sufficient to meet certain financial requirements. The mother tried her best to meet these requirements but failed within the time required. Her rights to the child were terminated. The mother appealed this decision but the Utah Supreme Court upheld it. Only the dissent in the Supreme Court’s decision mentioned that the mother had been unable to meet these requirements due to her status as an illegal immigrant. The dissent noted:
[G]iven Mother’s immigration status, the Plan’s requirement that Mother obtain employment and essentially procure independent housing is effectively designed for failure as it is legally impossible for Mother to comply with either of these requirements. Under federal immigration law, only immigrant aliens and nonimmigrant aliens with special permission are entitled to work … Mother is faced with two unacceptable alternatives: work, and by so doing commit a crime, or not work and lose her child. It is unfair to implement a plan that precludes a parent’s lawful compliance. The implementation of the Plan in this case prevented Mother from receiving a fair opportunity to reunite with her child. (citations and footnotes omitted)
The dissent went on to say that such a plan puts the “immigrant population at particular risk of losing their children, based primarily on their illegal status and an inability to lawfully obtain stable employment and housing.” State, in Interest of KJ at ¶50-51.
So, even though the mother in this case was afforded all the due process and equal protections of the law as regards to her child custody determination, her status as an illegal immigrant still put her at a disadvantage and may have ultimately been the reason she was unable to regain custody of her child. The father of the child in this case was absent and therefore he was not the party seeking termination of the mother’s rights. However, a similar situation could arise between parents where one is a citizen and the other is not and is consequently unable to meet provisions of a parenting-plan.
Another problem illegal immigrants may face in this area is that a parent may be deported at any time. The court making the child custody determination will not notify U.S. Immigration and Customs Enforcement of a petitioner’s immigration status but deportation may happen at some point through unrelated means. This may be a particular concern if it happens before or during the child custody proceedings, because, (as noted in example 3 above of Tom and Sally) physical presence is not required for the court to make a determination. If one parent is deported and the other is not, this could negatively impact the absent parent’s ability to effectively safeguard his/her rights as compared to the other parent. Being present in a legal proceeding generally provides an advantage in most cases, even if it is not required by the law. And, of course, being deported after the proceeding may interfere with a parent’s ability to exercise his or her custody or visitation rights.
Also, depending upon the circumstances a judge may be more likely to look more favorably on a citizen parent over the alien parent, because the child or children are U.S. citizens and are protected by civil rights laws that the alien parent may not fully enjoy.
Another problem may arise if one parent wishes to take the child out of the country and the other parent (understandably) fears that he or she may never see the child again. A court may, in cases where flight to another country is particularly likely, make restrictions such as requiring a parent to deposit his/her passport and visa during parenting time. See Soltanieh v. King, 826 P. 2d 1076 (Utah Ct. App. 1992). This is not standard practice. The parent who wishes to prevent the other parent from taking the child out of the country has the burden to show the court why the other parent should be prohibited from doing so. This includes evidence as to why the parent fears the other parent won’t return the child, what harm will result should this occur and what the court would be able to do to return the child if this should occurred. See In Re Marriage of Long v. Ardestani, 624 N.W.2d 405, 241 Wis. 2d 498, 2001 W.I. App 46 (Ct. App. 2001).
The Hague Convention on the Civil Aspects of Child Abduction provides means to return children who are taken in this way back to the “State of their habitual residence, as well as to secure protection for rights of access.” Mezo v. Elmergawi, 855 F.Supp. 59, 62 (E.D.N.Y.1994) (citations omitted). However, the Hague Convention provisions only apply only to those countries who sign it and thereby agree to abide by its terms. Id. So for those countries that do not abide by the Hague convention what a court may be able to do return a child may be very little. This will weigh into the court’s determination.
Therefore, a biological parent whose situation meets the requirements to petition for a child custody determination in Utah (per § 78B-13-201) may do so regardless of resident status. However, when one or both parents is an illegal alien it may present certain challenges, and a parent who is an illegal alien may be at greater risk of losing parental rights when the other parent is a citizen.