Law Tips: Immigration Law Meets Family Law – Sweet Child of Mine

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.

Paternity
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.

Travel
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.

In Conclusion
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.

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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.

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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.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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ALC – My Arch Nemesis: The Bluebook

ALC – My Arch Nemesis: The Bluebook

James J. Bell, ICLEF's Amateur Life Coach

The Bluebook: A Uniform System of Citation is now in its 20th edition and has recently made “the headlines” in law-related trade magazines and websites including these two interesting articles below:

A Bluebooking Error In… The Bluebook? (from Above the Law)
The Bluebook’s 20th edition prompts many musings (from the ABA Journal)

So, what does the Amateur Life Coach think of all the press his law school nemesis is getting lately?

Well, this week the ALC teams up with Indiana Supreme Court Justice Steven H. David to address the topic of proper legal writing and the role of “the Bluebook”:

Questions for the Amateur Life Coach?
Submit questions for the Amateur Life Coach to iclef@iclef.org

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum. This video is for informational purposes only and should not be used as a substitute for professional advice.

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James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Amateur Life Coach Answers, “How do I Prepare for Trial?”

Amateur Life Coach Answers, “How do I Prepare for Trial?”

James J. Bell, ICLEF's Amateur Life Coach

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Neurotic in New Albany….

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Dear Lifecoach:

My first jury trial is coming up and I’m freaking out! What can I do to calm my nerves?

Sincerely,
Neurotic in New Albany

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Dear Neurotic:

Slow down, take a deep breath and follow these simple steps.

Step #1: Find the Root Cause of Your Anxiety
You may be feeling pressure because the Wise Old Attorney (WOA) just told you it’s your job to win the jury trial. Well, as shown below, it’s not.

And you shouldn’t listen to the WOA anyway. He desperately wants the world to view him as some sort of gladiator, so he hung a quote from General Patton on his office wall that says: “Battle is the most magnificent competition in which a human can indulge. It brings out all that is best.” He constantly corners associates to spin various yarns about his trial battles. (For example, we’ve all heard on multiple occasions about the time when he caused a wee Irish geologist to admit on the stand that his blue diamonds were really just marshmallows. A Perry Mason moment indeed!)

There’s a reason they call war stories “stories” and there’s a really good reason the WOA ends his stories before he tells you about the jury’s verdict. And when was the last time you saw this supposed gladiator “gladiate?” Or step into a courtroom? Or even leave his office?

So disregard anything the WOA says on this topic. If the WOA wasn’t so interested in inter-firm marketing his “warrior” image, he would’ve put the second part of that Patton quote on the wall which says “All men are afraid in battle. The coward is the one who lets his fear overcome his sense of duty.”

So a little case of the nerves is natural and some extra adrenaline may be necessary, but “freaking out” helps no one. After all, there’s so much to figure out: opening statement, the direct examination of your client and the proper pronunciation of “voir dire.” So get out of the fetal position and get down to business.

Remember: you don’t deliver verdicts. Only judges and juries do. Your job is to put your client in the best position to obtain a verdict.

Step #2: Take Care of Things At Home Before You Prepare
Before you begin your final trial preparation, go ahead and apologize to your family. “Trial mode” is a little like Bill Bixbey turning into a muscular green monster and you shouldn’t wait until after you’ve gone all “Christian Bale” or “Bob Knight” or “Christian Bale as Bob Knight as The Dark Knight in Celebrity Meltdown” to apologize to your significant other or children. Give your loved ones a preemptive “I’m sorry” now and a gift that costs the same as three of your billable hours (per Martha Stewart).

Also, you need to get out of your house and down to the office. You might think it’ll be good for your family life if you work from home here and there over the course of the weekend. Wrong. The opposite is true. If you stay at home and try to play Uno with your 4 year old while you’re obsessing over what could go wrong at trial, your daughter will feel you’re ignoring her, have her feelings hurt and worst of all, you’ll forget to say “Uno” when you have one card left. It could cost you the game.

So leaving the house will help your family life. It will prevent you from ignoring your kids or growling at your spouse. It will be addition by subtraction and your family will thank you later.

Step #3: Prepare
Write out your closing argument first and then make sure that there is a piece of evidence that supports every argument. You probably think you know what you want to say in your closing, but until you put it on paper (or a computer screen) and look at what you are doing, your thoughts will not be succinct. You won’t be able to evaluate your arguments and see which ones really work. Bad arguments kill credibility. Discarding bad arguments (and therefore dropping the corresponding meaningless evidence) will help you become the organized, knowledgeable and therefore, credible lawyer you need to be at trial.

Once you get your argument written down, the rest is easy. (Well, easier.) Your voir dire and opening statement themes will be contained in the closing argument. And so will every question you wish to ask of a witness. If one of the other side’s witnesses testifies and it does not affect your closing argument, maybe this is a time to simply stand before the jury and show them that you’re not there to waste their time and say “no questions.”

And this is more tedious than it sounds. You’re going to have to review that entire file and pull your client’s story out of those dusty documents. This means wading through those dictionary-sized depositions you conducted a year ago and getting over the fact that you say “um” a lot.

Beware that as you study these depositions, you’ll realize that you’re not perfect and that you didn’t ask every deposition question perfectly. There will be small holes in your preparation. Don’t take this opportunity to freak out.

Fine. Go ahead and freak out. But just a little. This is a marathon, not a sprint. After three minutes of freaking out, get back to work.

Step #4: Exercise and Eat Right.
These are two things you must not do during trial. Your body may be a temple, but you’re in a court of law. That means you have to eat, drink, and (not) sleep this trial. Let the adrenaline course through your veins for the next five days and then rot inside your body for a month afterward, all in the name of justice. (Editor’s Note: The ALC is a juris doctor, not a medical doctor. Please consult with your primary care physician before eating or drinking a trial or letting anything rot inside your body.)

Step #5: Maintain Good Karma
Sometimes jury verdicts come down to something we can’t explain. I’ll just call it karma. Could the result of your case come down to karma? For your sake, let’s hope not. But it’s never too late to stop parking in the handicap parking space. Maybe you should leave a big tip for housekeeping at the hotel or make a donation to the SPCA so Sarah McLachlan will stop singing that song. That’s a win-win-win.

Step #6: Worry About Preparation, Not the Result.
The WOA once said that the three secrets to winning a trial were “Preparation! Preparation! And most importantly, Preparation!” That’s the only time the WOA got it right.

Trials are unpredictable. You can do everything right and still come up empty. Just remember that you didn’t pick the judge, you didn’t create the facts and you didn’t choose the jury. Well, you sort of did choose the jury, but you didn’t write the law. So stop sweating the many things at trial you can’t control.

And before you leave to the office to go to court, walk past the WOA’s office and enter Milk Toast Mary’s office. She has a quote on the wall from Mahatma Gandhi that says “Satisfaction lies in the effort, not in the attainment, full effort is full victory.” Milk Toast Mary may not be the best marketer, but she is smart.

You know your case, you have given “full effort” and you‘re ready to obtain “full victory.” Go get your evidence in, and make your best arguments. Trials can be fun, so don’t let self-doubt be the wet blanket that ruins the party.

I’m the Amateur Lifecoach and I hope this helps.

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Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.

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James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Amateur Life Coach Episode: Pro Bono & Your Practice

Amateur Life Coach Episode: Pro Bono & Your Practice

James J. Bell, ICLEF's Amateur Life Coach

Originally Posted May 2014

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Marion County Superior Court Judge Marc Rothenberg regarding the definition of Pro Bono

Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.

____________________________________________________________________

James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

 

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