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Green card status and custody rights when divorcing a U.S. citizen

On Behalf of | Jun 3, 2021 | Family Law |

Divorce, particularly when you have children, is never easy. However, when one parent isn’t a U.S. citizen, it’s only understandable that they’re concerned that this will affect their custody rights.

If you and your spouse can work out a custody agreement on your own, with the help of your attorneys, it won’t matter. Even if you can’t agree on an arrangement and a judge needs to decide, your immigration status likely won’t be a factor unless you’re in imminent danger of deportation.

How courts make custody decisions

Family law courts base custody decisions on what’s in the best interests of the child. Unless one parent has been shown to be unfit (for example, if there has been a history of violence, neglect and/or substance abuse), judges generally prefer that both parents remain in a child’s life. 

Each parent can make the case for their ability to provide a healthy, stable environment. Depending on a child’s age and maturity, a judge may talk to them to determine what their preference is. However, even then, the child’s wishes are just one factor.

Is your green card still conditional?

Many non-citizen spouses got their green card granting them permanent resident status after they marry a U.S. citizen. Depending on how long you’ve been married, your green card may still be conditional. If your spouse doesn’t agree to sign onto the necessary form to get the conditions removed, there are options for waiving their consent, which an immigration attorney can review with you.

If there are no longer any conditions on your green card, divorce shouldn’t affect your permanent resident status unless your spouse gets truly vindictive and tries to claim that the whole marriage was a sham to get you a green card – in which case they’d be implicating themselves in the fraud and risking legal consequences.

If you got your green card separate from your marriage – perhaps because you’d been living and working in the U.S. for a time and wanted to start the journey toward citizenship – your divorce should have no effect on your status.

What should you do now?

If your plan is to remain in the U.S. following your divorce and co-parent your child, your immigration status shouldn’t get in the way. However, it may add a layer of complication, so it’s wise to have an attorney on your side who knows both immigration and family law.