INQUIRER Global Nation

CALIFORNIA, United States—David is a US citizen who is married to Veronica, a Filipino. They have two minor children. After more than five years, David refused to file a petition for Veronica for permanent resident status. Hence, Veronica remains an undocumented immigrant.

Veronica filed a petition for dissolution of their marriage because of irreconcilable differences. On the other hand, David filed for full physical custody of their two minor children. He argued in court that Veronica was undocumented and that the care for their children should be given to him. He claimed that the two children would attain US citizenship if he were awarded custody.

Family rights

The court granted David’s wish.

Veronica now wants to know if she can appeal and obtain joint custody despite the fact that she is an undocumented mother.

Those who had fallen out of status and are considered “TNT” (tago ng tago, or in constant hiding) in the United States may find themselves in similar family disputes.

In family law courts, both parties are heard based on their rights to be supported and the right to custody of their children. The issue of deportation is rarely taken into account but it is not unusual that it arises during the hearing.

And when it arises, the TNT spouse usually feels powerless and intimidated.

Equality in courts

It is true that being undocumented renders one vulnerable to deportation if not outright arrest by the Immigration and Customs Enforcement. However, this is a federal matter where the state family court does not usually take it into account, unless it is necessary.

David’s assertion that he deserves full physical custody of their two minor children is a flawed argument. His position is based on an inapplicable and repealed statute. Shifting custody from the mother to the father provided absolutely no immigration or citizenship benefit to the children. The facts of this case are similar to a case decided by the Nevada Courts in Perez Rico v. Rodriguez (121 Nev Advance Opinion 71, October 6, 2005).

Threat of annulment

When children’s physical custody is in dispute, the court has to decide based on the best interest of the children. When evaluating the circumstances on who deserves to have custody, the district court has the discretion to consider a parent’s immigration status to determine its derivative effects on the children. But it may not be the only deciding factor.

The interest of parents in the care and custody of their children is perhaps the oldest of the fundamental liberty interests recognized by the US Supreme Court.

The family law judges generally follow the rule that all parents stand on equal footing before the court despite differences in immigration status, considering that a person’s immigration status is not an indication of his or her fitness as a parent.

When a US citizen petitions a Filipino spouse and the latter gets the green card, the matter of petitioning even becomes an issue in family court. When the marriage fails, there are those who feel betrayed and claim that their partner married them just for the green card. This issue is common to those who feel that their spouses owe them an eternal debt of gratitude for petitioning them to become US green-card holders.

Filing an annulment based on “fraud” has adverse immigration consequence.

In contested divorces, the aggrieved spouse who had petitioned for the spouse’s green card usually files for annulment instead of the dissolution based on “irreconcilable” differences to threaten the other parties’ immigration status.

There is only one instance where the undocumented spouse once petitioned may obtain immigration benefit from the petitioning spouse during divorce. This is the case where spousal support may be claimed from the US citizen if the petitioned spouse is unemployed or has no other means of support.

Spouse’s rights

Generally, the issue of spousal support is litigated and the court determines the resources of each person and computes amount of spousal support based on an established formula.

If the US citizen spouse refuses to provide support if the petitioned spouse is not yet a US citizen, she may enforce the provision of the Affidavit of Support that was executed during the petitioning process.

In their regard, the basis becomes contractual. The enforcement of the provision of the affidavit shall become the basis for obtaining support. This rarely happened before but with the increase in unemployment rate, more ex-spouses are demanding support.

Parties to family law cases are never satisfied with whatever judgment is rendered. It is disheartening that the threat of deportation makes matters worse for the undocumented. Having realized that allowing parties to inquire about the immigration status of other parties, when not relevant, would present a “danger of intimidation that would inhibit plaintiffs in pursuing their right.”

The courts are clear that immigration status alone shall not influence outcome of their decisions on custody and support. Immigration system is established to promote family unity and should not be misused to influence outcome of cases in family law especially when the best interest of the children are at stake.