Tuesday, May 10, 2011

Trial Court Modifies Child Custody Because of Custodial Parent’s Undocumented Status, and Is Reversed by Highest State Court on Appeal



Palm Beach County divorce lawyer and domestic violence attorney Janet Langjahr

May 8, 2011

Trial Court Modifies Child Custody Because of Custodial Parent’s Undocumented Status, and Is Reversed by Highest State Court on Appeal

Posted by Janet Langjahr. Filed under Child Custody or Parental Responsibility, Immigrants, Miscellaneous.

Mother and Father both enter the US illegally and remain in Arkansas.

Mother remains undocumented for years. Father secures legal status on a temporary but renewing basis.

The government pursues increased child support from Father for their Daughter.

And then Father looks to get custody of Daughter.

To modify custody, Arkansas requires a material change of circumstances since entry of the previous child custody order.

At trial, the family court modifies child custody and awards custody of Daughter to Father. It appears that the trial judge bases his ruling upon his personal political and policy views, rather than Arkansas child custody law.

On appeal, Arkansas’ highest court reverses and restores custody of Daughter to Mother.

It turns out that the circumstances Father complains of, Mother’s undocumented status and lack of a valid driver’s license, are exactly the same as they were at the time of Mother’s and Father’s divorce. They were apparently acceptable to Father then, and the marital settlement agreement was approved by the family court and adopted in its final judgment.

Further, the evidence at trial showed that Father had had little or no contact with Daughter for about two years.

Read more in this Arkansas Times piece: Illegal Immigrant.


* ILLEGAL IMMIGRANT: The Supreme Court, in an opinion by Justice Karen Baker, reversed Circuit Judge Philip Shirron's decision to take child custody away from a Grant County mother because she was an undocumented immigrant.

The father, who had temporary status to be in the country, sought custody of the child, now 9, after a request was made for an increase in child support. He contended circumstances had changed since the couple's divorce, particularly dangers he alleged from the mother's immigration status (driving without a driver's license, possible deportation.)

Shirron found for the father, lashing out at illegal immigrants in general in the process.

Neither of these are showing the concern and dedication to comply with this Country’s laws, this Country’s policies and procedure. It’s a great place to live, but you have no obligation to it. I believe that public opinion lashes out at these type conditions, and I believe it’s not appropriate for a Court to condone them. When at least there’s at hand a legally qualified custodial parent, or a person that could be a custodial parent.

In reversing, the court noted the mother's status hadn't changed since the father agreed to the custody arrangement and the father knew the mother's status at that time. The court dismissed other arguments, such as the father's claim of better economic circumstances and the mother's having additional children by different fathers. Custody decisions aren't made to punish or reward parents and the mere fact of greater income is not sufficient to change custody, the court said. I believe, by quoting Shirron's incendiary commentary, the court sent a signal about the tenor of his remarks.

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