By: Maya Martin Tsukazaki
There are many ways that family law and immigration law overlap and intertwine. However, there are some circumstances where the two should remain distinct. Noncitizen parents, particularly undocumented parents and parents with temporary status, experience unique barriers to obtaining custody of their children in custody disputes. The “best interest of the child” standard has been used to unfairly discriminate against noncitizen parents, particularly in mixed-status families.
Best Interest of the Child and Immigration Status
When determining custody of a child in a custody dispute, courts will evaluate what decision is in the “best interest of the child,” among other factors. No state explicitly considers immigration status as a factor in custody determinations, but some courts have considered the immigration status of a noncitizen parent in the best interest standard. This is often based on assumptions about a parent’s risk of deportation, or the parent’s perceived intentions to leave the United States.
In 2005, the Nevada Supreme Court decided Rico v. Rodriguez, which set a precedent by using immigration status as a factor in determining the best interest of the child. In this case, the Court upheld a decision awarding custody to the father of the minor children, in part due to the mother’s lack of status. The court considered the fact that the father, a lawful permanent resident, could petition for the children and eventually become a U.S. citizen was relevant, while the mother’s uncertain status in the U.S. might place the children at risk. Rico is still standing precedent in Nevada, and has been cited as recently as January 2021 (although on other legal matters). Nevada is not unique; in one case, the Kentucky Court of Appeals evaluated custody based on the assumption that the father was at risk of being deported, even without having evidence of his immigration status. New York has similarly used a parent’s immigration status as a factor when determining the best interest of the child.
Financial Stability, Employment, and Status
Even in cases and states where immigration status is not explicitly considered, status can still influence the way that courts understands the circumstances of the parents and the best interest of the child. Overemphasizing financial stability and employment as being in the best interest of the child can lead to disproportionate numbers of decisions against noncitizen parents. Families with noncitizen parents have higher poverty rates than families with U.S. citizen parents, and the poverty rates of undocumented parents are likely even higher. Although this is caused by systemic barriers and inequities that keep families in poverty, state courts have frequently ignored the correlation.
Employment can also be a barrier to custody of children, as noncitizen parents, particularly undocumented parents, may lack access to many employment opportunities. Individuals with irregular or temporary employment, or individuals who work in the gig economy may be unable to verify their employment in a way that satisfies the court. Courts may also have assumptions about which kinds of jobs are considered “suitable” and “stable” employment. Although employment is generally not a requirement for parents to obtain custody of children, courts may consider it relevant in determining what is in the best interest of the child.
Other Barriers to Noncitizen Parents in Custody Determinations
There are other systemic barriers to noncitizen parents in custody determinations. Some undocumented parents may have safety concerns about appearing in court, particularly with the rise of ICE courthouse arrests. Detained parents are also physically prevented from appearing in family court and may lose long-term custody of their children. Additionally, courts and child welfare agencies occasionally base decisions on conscious or unconscious xenophobic and racist biases about the ability of noncitizens to be suitable parents.
Immigration status should not be a factor in considering the best interest of the child in family court. Judges may not recognize that some undocumented parents are eligible for pathways to “legal” status, or that some individuals on temporary visas can seek more permanent statuses. A focus on status renders noncitizen spouses vulnerable, and in some domestic violence cases, the spouse with a less-permanent status may believe that leaving their spouse would mean loss of custody of their children. Parents have a fundamental right to raise their children, and immigration status is not relevant to the best interest of the child. Courts should be barred from considering immigration status in custody determinations, while also recognizing and mitigating the ways that immigration status influences other factors evaluated in determining the best interest of the child.
 This post will use the term “noncitizen” broadly to refer to individuals who are not U.S. citizens but who reside in the United States.
 See generally Soraya Fata , et.al., Custody of Children in Mixed-Status Families: Preventing the Misunderstanding and Misuse of Immigration Status in State-Court Custody Proceedings, 47 Fam. L.Q. 191, 194 (2013) (highlighting the rise in family courts considering immigration status relevant in custody determinations).
 Id. at 193-94
 Id. at 196.
 Fata, supra note 2, at 196.
 Kerry Abrams, Immigration Status and the Best Interests of the Child Standard, 14 Va. J. Soc. Pol’y & L. 87, 92-93 (2006).
 Rico v. Rodriguez, 120 P.3d 812, 816 (Nev. 2005).
 Id. at 815-16.
 Id. Note that Nevada updated its custody statutes, and which now say “The fact that a parent has significant commitments in a foreign country does not create a presumption that the parent poses an imminent risk of wrongfully removing or concealing the child.” See 2015 Nev. Stat. 2587.
 See, e.g., Riley v. Dep’t of Public Safety, No. 79389, 2021 WL 150763, at *1 (Nev. 2021) (citing Rico, 120 P.3d at 817)(stating that the Nevada constitution does establish equal protection).
 Ramirez v. Ramirez, No. 2005-CA-002554-ME, 2007 WL 1192587, at *3 (Ky. Ct. App. 2007) (stating that “there was a significant risk that Ramirez [the father] could be deported”).
 See, Ish-Shalom v. Wittmann, 797 N.Y.S.2d 111, (N.Y. App. Div. 2005) (expressing concern over the mother’s status as a temporary visitor and awarding joint custody so that the mother could not return to her native country with the children without permission of the father).
 Abrams, supra note 6, at 95.
 Seth Freed Wessler, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System, Applied Research Ctr. (Nov. 2011), 18, https://www.raceforward.org/research/reports/shattered-families.
 Abrams, supra note 6, at 95-96.
 Lack of work authorization or limitations on work authorization, as well as experience or language requirements and explicit discrimination can all prevent individuals from obtaining secure employment.
 The gig economy is often defined as small projects and tasks or short-term projects for which workers are hired on demand through digital platforms. See Elka Torpey & Andrew Hogan, Working in a gig economy, U.S. Bureau of Labor Statistics: Career Outlook (May 2016), https://www.bls.gov/careeroutlook/2016/article/what-is-the-gig-economy.htm.
 See id. at 20.
 See Abrams, supra note 6, at 95 (noting that when courts consider factors related to immigration status, such as stable employment, it can lead to “double-counting” immigration status against the parent).
 Courthouse arrests of undocumented individuals are not unusual, and increased under the Trump administration. See The Courthouse Trap: How ICE Operations Impacted New York’s Courts in 2018, Immigrant Defense Project (Jan. 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/TheCourthouseTrap.pdf.
 Note that parents detained by ICE will also face difficulties in reunifying with children who were placed in the child welfare system. For additional information, see Wessler, supra note 11, at 39 .
 This is particularly true for financially vulnerable families and noncitizens of color. See Krista Ellis, Race and Poverty Bias in the Child Welfare System: Strategies for Child Welfare Practitioners, Am. Bar. Ass’n (Dec. 17, 2019), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/january—december-2019/race-and-poverty-bias-in-the-child-welfare-system—strategies-f/. See also Abrams, supra note 6, at 97 (arguing that some courts seek to “punish” undocumented individuals through negative family court decisions).
 See NIWAP Newsletter: Child Custody in Immigrant Families, Nat’l Immigrant Women’s Advoc. Project, https://niwaplibrary.wcl.american.edu/wp-content/uploads/NIWAP-Newsletter-Custody-leo-mf-ba.pdf.
 Fata, supra note 2, at 217.
 Id. at 218 (“a parent has a fundamental right to the care, custody, and control of his or her child, absent a compelling state interest”); see also MiaLisa McFarland & Evon M. Spangler, A Parent’s Undocumented Status Should Not Be Considered Under the Best Interest of the Child Standard, 35 Wm. Mitchell L. Rev. 247, 280 (2008) (arguing that preventing undocumented parents from raising their children is a violation of the “fundamental liberty” to raise one’s own children).