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What Are Custody Rights For The Undocumented?

| Jan 22, 2021 | Child Custody & Support |

Living and working as an undocumented resident is challenging enough without the added complication of child custody issues. It is common for undocumented residents to fear exploring the extent of their child custody rights due to an undocumented status’s legal risks. The US Constitution provides protections for a parent’s rights to care for and maintain responsibility for their children, regardless of immigration status. Even a person being deported has certain rights of custody. The Bureau of Immigration Affairs allows for undocumented residents facing deportation to potentially choose to leave their child/children in the United States with caretakers. 

The state’s interpretation of parental fitness

Though the constitution may be supported by federal immigration law, state agencies like child welfare and state family courts have a fair bit of power when it comes to deciding on custodial decisions. Here are some of the circumstances where a parent could lose custody of their children in Tennessee:

  • Family courts and juvenile courts have the power to declare a parent unfit. This can extend to parents who are undocumented residents.
  • Child welfare agencies can have a say in this designation as well. 
  • There have been cases where a court or child welfare agency finds a parent unfit on the basis that they are undocumented. 
  • This ‘unfit’ designation can have a variety of justifications, including the inherent risks in traveling to the US unauthorized with a young child or that parent did not meet a ‘basic level’ of prenatal/postnatal care.
  • The trouble with a parent being deemed unfit is that this is mostly a subjective decision.

Exploring the options for custody arrangements

If you moved to the US to raise your family, you want to stay close to your children to care for them and give them new opportunities. Don’t let a court determine what is in your child’s best interests. Explore all the legal options for pursuing custody of your child.