Indiana enjoys a wealth of variety and culture, due in large part to the immigrant community that plays a vital role here. However, a large immigrant community also brings complex situations that can arise as immigration law intersects with state and local statutes and practices, especially in the area of family law. Dallin Lykins, immigration law and family law practitioner with Lewis & Kappes, P.C., Indianapolis, offers Law Tips readers a few pointers in the child custody and support area:
Any time a client appears to have immigration ramifications or concerns, a wise practitioner would consult with an experienced, immigration law attorney to help resolve or prepare for any immigration issues. Current immigration law is codified in the federal Immigration and Nationality Act (“INA”). While most family law practitioners will not find it necessary to keep a copy of the INA in their legal libraries, a basic understanding of immigration law can help a practitioner spot legal issues involving immigration concerns, improve strategy, and avoid pitfalls.
Sweet Child Of Mine: Child Custody, Support and Travel
Indiana courts are primarily concerned about the best interest of the child or children when determining domestic and family law matters. Understanding how immigration issues may affect the relationship between a parent and child can be valuable for a family law practitioner.
The immigration issues can begin as early as the birth of an immigrant’s child. Many hospitals require a social security number in order to list the parent’s name on the birth certificate of a child, and so many immigrant fathers may not be listed on the birth certificate. This can cause problems later on with both family and immigration matters. Fathers should take the necessary steps to remedy this error as soon as they can. If the father has not established paternity and is deported before doing so, this can be a serious problem, because it can be difficult to have communication with the individual or have him appear at any future hearings. *See update below regarding certain Indianapolis hospital policies.
Family law practitioners should make sure they understand the process in Indiana in order to establish paternity and do everything possible to do so in order to avoid confusion and frustration if a parent is later deported from the United States. Once a parent is deported from the United States, immigration laws require the individual remain outside the United States for a long period of time (five, 10, or 20 years). See INA §212(a)(9)(A).
Custody and Child Support
Some local judges or magistrates do not spend much time determining or considering the legal status of an immigrant in the United States. It should be noted, however, that cases do exist where a parent’s immigration status has been a component of a judge’s decision in determining custody. See Rico v. Rodriguez, 120 P.3d 812 (Nev. 2005). Government agencies (such as Department of Children’s Services, DCS) may take it into account. It is important to be able to correctly inform DCS of the different types of status and what they might mean to a family (i.e., when can someone apply for a driver’s license).
While immigration status may be considered in a custody determination, it should not automatically preclude an individual from being granted physical or legal custody of a child. For example, Indiana law does not make specific statutory requirements regarding immigration status in a guardianship filing, but the person’s immigration status can play a factor in the judge’s decision. Since there are so many different types of statuses of immigrants in the United States, the fact that someone is not a lawful permanent resident or citizen of the United States does not automatically signify the person cannot work and support a child here in the United States. Further, it does not mean the immigrant will automatically be deported from the United States. It also does not mean the individual will not be a suitable parent or guardian.
Child support can also have importance in the immigration context. For example, an individual seeking citizenship in the United States is not eligible to become a U.S. citizen if there is evidence she “willfully failed or refused to support dependents.” 8 C.F.R. §316.IO(c)(3)(i). A failure to pay child support can also affect a lawful permanent resident’s ability to travel or renew their Lawful Permanent Resident card. In determining child support some individuals may be hesitant to include employment if they are not employed with a legal social security card. Normally, reporting accurate income on a child support worksheet will not create immigration consequences, but anytime someone is working without lawful permission there can be serious immigration issues in the future. For example, if someone is found to have committed identity fraud or identity theft they can be deported from the United States or prevented from receiving many immigration benefits in the future. Also, fraudulently filling out an I-9** may lead to serious negative immigration consequences, including deportation.
A concern that often arises in dissolution proceedings is the fear one parent may travel outside of the United States with the couple’s child. In many instances, the dissolution decree or preliminary agreement should contain clauses requiring parents to sign off on passport applications or to give a child’s passport to the custodial parent or neutral third party. In order for a U.S. citizen child to travel outside the United States, the child must have a passport. See Department of State’s Web site, Click Here.
If the child is under the age of 16, either parents or guardians must be present when the child applies. If one of the parents cannot be there (perhaps because of deportation), the parent who cannot be present can sign a form consenting to the application of a passport. Id. If consent from the other parent is not possible, the parent accompanying the child can prepare and sign a form that allows the passport application to be processed. Id.
A parent’s travel with a child should be discussed and analyzed while considering the parent’s immigration status. Certain protections may need to be taken and included in agreements or decrees in order to protect the child and ensure strong cooperation and communication between the parents.
Family and domestic matters can be complicated, time-consuming, and stressful. When immigration issues are added into that mix, they can become overwhelming. Having an understanding of and appreciation for immigration concerns will help attorneys make clients feel more comfortable and confident to discuss immigration matters that sometimes can be awkward, frightening, and uneasy to talk about with others.
While it is always important to be able to consult with a knowledgeable immigration attorney, family law attorneys in Indiana will become much better practitioners if they can adeptly discuss and confront immigration matters with their clients and help them consider aspects of their case they would not have thought of otherwise.
*Regarding issues with hospitals not adding a father’s name to the birth certificate when no social security number is present, I am informed that many hospitals in Indianapolis no longer prevent the father from being on the birth certificate. The person may want to contact an attorney if this happens.
**Form I-9: Employment Eligibility Verification Form. You may obtain electronic copies of English and Spanish versions of Form 1-9 from the U.S. Citizenship and Immigration Services (USCIS) website at wvvw.uscis.gov.
We greatly appreciate Mr. Lykins participation in Law Tips. As a member of our faculty for the Immigration Law You Really Need To Know Seminar, Dallin Lykins covers a broad spectrum of these current issues for family law practitioners. To schedule your Video Replay or OnDemand CLE session, Click Here.
About our Law Tips faculty participant:
Dallin Lykins grew up on a farm in Azalia, Indiana. He earned a B.A. in Communications from Brigham Young University in Provo, Utah. After graduating from BYU, Dallin worked as a speech writer and communications specialist in Washington, D. C., and later graduated from Indiana University Maurer School of Law in Bloomington, Indiana. He first began practicing with a small immigration law firm, and he joined Lewis & Kappes, P.C., Indianapolis, in 2012 as a member of the firm’s immigration law and family law groups. Aside from handling any type of immigration case, Dallin has worked as a certified domestic relations mediator in the state of Indiana for more than six years. He has presented CLE and other courses on immigration law in various settings.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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