Who Gets Custody if My Dad Is a Citizen and My Mom Is Undocumented?

By River Braun, J.D.

Who Gets Custody if My Dad Is a Citizen and My Mom Is Undocumented?

By River Braun, J.D.

Dealing with custody issues can be challenging and emotional when both parents have legal status. However, when one parent is an undocumented immigrant, and the child and the other parent are United States citizens, does the parent with citizenship always receive custody? As with all other custody cases, the overriding factor in determining custody will be the child's best interests.

Teenage boy sitting outside appearing upset and pensive

Determining Child Custody in the United States

Like divorce, matters related to child custody are governed by state law. Most states have adopted general guidelines that assist judges when deciding custody issues. For the most part, states have adopted the principle that the “best interests" of the child should dictate which parent receives custody.

It is an accepted assumption that a child benefits from having two parents in their life. Therefore, a judge gives both parents equal status when beginning a custody case. The judge does not presume that the mother or the father would be a better choice based on gender or the age of the child. Factors that have been adopted in many states and are considered when deciding who will receive custody of a minor child include:

  • Age and health of the parents
  • The relationship between each parent and the child
  • Which parent has been the primary caregiver
  • If both parents are able to encourage and foster a relationship between the child and the other parent
  • Ability to provide a safe home
  • Allegations of abuse or neglect
  • The wishes of the child, depending on their age
  • Ability to provide for a child's special needs
  • Relationships with other family members

A judge may also consider any other factor the judge deems relevant in determining the child's best interests, including the undocumented status of one of the parents.

Undocumented Immigrant Status Does Not Equal Unfit

In some cases, a parent whose immigration status is in question could still be the parent who should receive custody based on the “best interests" standard. Being an undocumented immigrant does not mean the parent is unfit. It simply means there is an issue with the person's legal status in the U.S. Some parents who are “undocumented" may be so because they overstayed their visa. “Undocumented" does not necessarily mean the person crossed the border illegally when they originally entered the country.

Immigration laws in the U.S. do not presume the parent should lose custody of their child because of their immigration status. The parent's status as an undocumented immigrant should not have a bearing on custody. However, there are exceptions.

When a Judge Can Consider Immigration Status During a Custody Case

Most states grant judges broad discretion when determining which factors impact a child's best interest. For instance, a judge may weigh the chance that the mother will be deported or is facing deportation when considering custody. If the child is a U.S. citizen, the judge may rule that the father should retain custody so the child can remain in the country if the mom is deported—unless, of course, the father is an unfit parent.

State laws may also differ regarding this matter. Some states may place more weight on the fact that the mother is an undocumented immigrant. The father might receive preference for custody in states or jurisdictions that have a high priority on enforcing immigration laws.

A judge may give the mother custody based on the facts relevant to the specific situation. It is difficult to determine what a judge may do because each case is unique and each judge is different. Parents who are undocumented immigrants may have the burden of proving they are fit parents, again, depending on the judge.

If immigration status is impeding the outcome of your custodial rights, consider seeking legal help to guide you through the process.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.