Law Office of David L. Scott

Child Custody When One Parent is a Non-U.S. Citizen 

Child custody is complicated even under normal circumstances, however, when one parent is not a U.S. citizen, it can make the process even harder to navigate. If you are trying to determine custody of a child and their parent is a foreign national, it is a good idea to consult with a family law attorney to ensure that you understand the process and how best to make your custody case.

Can Citizenship Affect a Parent’s Ability to Get Custody?

The U.S. Supreme Court has repeatedly held that a parent’s citizenship or lack thereof should be largely irrelevant to the determination of child custody. This is important because it means that cases involving parents where only one is a U.S. citizen will be treated much the same as any other custody matter. This means that the court will be assessing both parents to determine which custody arrangement would be in the best interest of the child. It also means that a parent with U.S. citizenship should not overestimate the strength of their case merely because they are a citizen.

A parent with U.S. citizenship will still have to prove that giving them primary physical custody would be in the best interest of the child. On the other hand, a parent who lacks U.S. citizenship, while still having an equal chance at custody on paper, may find it hard to navigate the U.S. family court system and to present as strong of a custody case. For this reason, regardless of your citizenship status, it is important to consult with an experienced family law attorney who can review the facts and circumstances of your case to prepare the best case for custody.

What is the Court Looking for in an International Custody Case?

The judge in a custody matter will determine what is in the best interest of the child. They can make this determination based on several factors. Factors may include things like which parent has the time and ability to meet the child’s needs, as well as which environment would provide the child with a support network, family ties, or a close-knit or religious community. The court may also consider which custody arrangement would allow the child to maintain the most stability, such as remaining near their extended family or in the same school district.

In some cases, such as where the child is sufficiently mature to have an intelligent opinion, the judge may also consider the child’s opinion and preference. In a case where a child is 12 years old, has never lived outside of the United States, has an extensive family network here, and has a U.S. citizen parent who can meet their needs, these would all be factors against uprooting the child to give physical custody to the non-citizen parent. However, in a case where the U.S. citizen parent lacks the time and ability to properly care for the child and the child has an extended family and community abroad, these factors may weigh in favor of giving custody to the non-citizen parent. This is not so different from determining custody between two parents who are both citizens, except that the stakes are higher.

Contact the Murfreesboro Law Office of David L. Scott

If you are attempting to navigate an international custody matter, you need a dedicated legal advocate on your side. Contact the Law Office of David L. Scott in Murfreesboro, Tennessee, today and schedule a consultation, to find out how we can help.

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