Will my children be taken from me if I get divorced an am not a citizen?

I am not an American citizen. Will my children be taken from me if I get divorced?

California law explicitly states a parent’s immigration status is not a factor when a judge decides a child custody matter. The state’s family code section 3040(a) and (b) state in part,

(a)    Custody should be granted in the following order of preference according to the best interest of the child….To both parents jointly…or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent… and shall not prefer a parent as custodian because of that parent’s sex…

(b)   The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).

The fact you’re not an American citizen will not be held against you. However, that status will not protect you if the judge feels it’s in your children’s best interests that you not have custody of them (though even if you don’t have custody of the children, you should have visitation rights).

If in addition to the divorce, you’re planning on moving with your children to your country of origin, the judge may or may not agree with that.  You would have to show not only that it’s in the children’s best interests that you have custody of them, but a move is also in their best interests and would not prejudice their rights or welfare. The other parent could raise a number of objections, including that the move may effectively cut him or her off from the children.

If you have any questions about child custody issues, contact our office.

Posted in: Child Custody, Family Law