January 31, 2019 Custody

Immigration Related Abuse and Child Custody: What Family Law Practitioners Can Do To Help

By Stephen Zollman

During the most recent Family Law Section’s meeting in Tucson, a very informative visit to the border was arranged and several panels discussed immigration issues. During the Child Custody meeting, the question was raised about how we can best assist our fellow practitioners as they work with undocumented clients. As a former San Francisco Public Defender, I saw the not so great side of how immigration issues were raised, especially when domestic violence was involved. Being newly appointed to the ABA Domestic Violence and Sexual Assault Commission and Vice Chair of the Vulnerable Adults Committee, I offered to check into some resources and draft this article as a way to generate discussion about best practices that make sure the best interest of the children triumph concerns of a lack of immigration documentation.   What I found was that 1) according to Judges associated with the National Immigrant Women’s Advocacy Project (NIWAP) there is a need to do early client assessments for immigration relief and to help educate everyone involved in the proceedings, judges included, to dispel outstanding myths and 2) the need to do the immigration filings for relief or to make referrals to qualified organizations who can. Both of these are explored below.

Family law practitioners can play a huge role in assessing clients for possible immigration relief and can even help clients file for that relief.

Family law practitioners can play a huge role in assessing clients for possible immigration relief and can even help clients file for that relief.

Credit: StockPlanets via GettyImages

In effort to find out possible best practices, I posted about this article on our list serve and one of our wonderful new Section Fellows, Chris Kung, of Peace Over Violence, responded by saying that California recently enacted SB 785 (California Evidence Code 351.3 and a351.4) to address the issue of someone's immigration status being used against them in court. According to the Legislative Counsel’s Digest, they were drafted to  “prohibit the disclosure of a person’s immigration status in open court by a party unless that party requests an in camera hearing [i.e., in the judge’s office rather than in the courtroom] and the presiding judge determines that the evidence is admissible.” The Legislature apparently seeks to prevent litigants from the disclosure of irrelevant and otherwise inadmissible and potentially harmful allegations of illegal immigration and potential deportation for having been a litigant with an opportunity to be heard in court.

From other responses on the list serve, it sounded like there were still some myths floating around in the system and for those, I turned to the wonderful staff attorneys to the Commission. They referred me to a terrific two-part teleconference entitled:  Challenging an Abuser's Discovery Request about Survivor's Immigration Status, the transcript of which can be found at: https://www.americanbar.org/groups/domestic_violence/Trainings/Past-Teleconferences/teleconference-series/. This series emphasized the need to treat all domestic violence survivors with children in a holistic manner. They also referenced the great work of ASISTA and NIWAP. It was in the NIWAP material that I found a terrific webinar that included two sitting judges, entitled: Custody for Abused Immigrants: Tips, Tools and Best Practices, November 15, 2018, along with an accompanying bench card that can be  found at: http://niwaplibrary.wcl.american.edu/wp-content/uploads/2015/Judg-Tkit-BchCrdVictimsImmRights10.11.13.pdf. The Bench card lists the following myths along with the correction information:

  1.  Parent Must Be Awarded Custody to Be Able to Confer Immigration Status to Their Children-  Incorrect.  A parent’s ability to file an application for immigration relief for their child is not related to whether or not the sponsoring parent has custody of the child.
  2. Undocumented or Temporary Immigration Status Means that the Immigrant Parent is at Risk of Removal From the United States. Incorrect. DHS has issued a series of policies, which have remained the same since 2018, designed to prevent the deportation or removal of crime victims and witnesses and once an immigrant crime victim has filed an application for immigration relief that has been deemed valid, DHS cannot initiate immigration enforcement, detention or removal actions against the victim and any children included in the application.
  3. Immigration Status Impacts the Child’s Stability and the Parent’s Ability to Provide for Their Child. Incorrect. Immigrant victims of domestic violence, child abuse and other crimes will ultimately receive work authorization through their VAWA self petition , average wait time is 18 months, U visa or T visa immigration case. Courts can order  the citizen or lawful permanent resident parent to pay child support.
  4. Undocumented Immigration Status Places the Child at Risk of Parental Kidnapping. Incorrect. Immigrant parents with children in the United States who are undocumented and who are eligible for VAWA, U visa or T visa, or another form of immigration relief are unlikely to leave United States, since amendments to U.S. immigration laws created 3year, 10 year and permanent bars to reentry that could cut parents off from their children permanently if the parents leave the United States. The judges stressed that the lack of the ability to freely travel as the main reason why undocumented parents do not leave the US.
  5. Immigration Status impacts the immigrant parent’s ability to obtain public benefits on the child’s behalf. Incorrect. When the immigrant parent files for benefits on behalf of their child, state and federal benefits granting agencies are only allowed to ask for immigration status information and social security numbers for the immigrant child applying for benefits.

The judges also stressed that with the increased number of mixed status marriages, it is an access to justice issue when clients are not accessed for immigration relief.

Lastly, all of the above resources were helpful in locating this central source for referrals when a family law practitioner does not feel comfortable in helping a client file for relief or if the issues are complex.  The site can be found here: http://niwaplibrary.wcl.american.edu/home/directory-programs-serving-immigrant-victims.

In conclusion, it seems clear that family law practitioners can play a huge role in being able to assess clients for possible immigration relief and even help clients file for that relief. If folks are interested in keeping this conversation going, please respond to the original post on our list serve. Thanks for all that you continue to do to help all of our vulnerable adults and their children.

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Stephen C. Zollman

Esq., San Francisco, CA

Law Offices of Stephen C. Zollman

ABA Section of Family Law Vulnerable Adults Committee Vice-Chair