Child Custody Awarded to Deported Father

Washington state is a destination for immigrants and immigrant families from all over the world, some of whom have legal status here in the United States and some who do not.

Child custody determinations can be especially difficult when a parent is removed from the United States by immigration authorities. A recent case just across Washington’s eastern border serves as an illustration of the difficulties faced by families when one parent is out of the country and forbidden from returning.

In that case, the Idaho Supreme Court ruled that a lower court had incorrectly terminated a man’s parental rights while he was in Mexico. He had, until last week, never before met his 3-year-old daughter.

But in the decision, parental rights somewhat trumped immigration concerns.

The father in the case had been living in the United States when he met the woman who would become the girl’s mother. The two married in 2007 but by 2008 an immigration court ordered the father to return to Mexico, so the couple moved there together. That same year, the woman left Mexico while pregnant to give birth to the baby in the United States.

The father attempted to return to the United States about six months after his daughter was born but immigration authorities sent him back across the border. As he was trying to return, state authorities were in the process of removing the baby from her mother’s care, due to alleged neglect and abuse.

In 2010 the state attempted to terminate the parental rights of the father. State authorities argued that the father had abandoned his daughter.

A magistrate judge found that the father lacked sufficient income and/or assets to support the girl but now the state Supreme Court has overturned the ruling, granting custody to the father. A team of Mexican consular officials recently accompanied the girl to Guadalajara.

Because family law questions are settled in state courts according to state laws, this decision has no little to no effect on cases here in Washington. However, the case is instructive and may be persuasive in similar situations. Any community with an immigrant population may be forced to confront this issue.

Source: The Seattle Times, “Idaho child reunited with father in Mexico,” Todd Dvorak, Aug. 23, 2012