How Does Immigration Status Impact a Family Law Case?

undefinedFamily law matters are often largely overwhelming for individuals who are trying to navigate challenging compromises, new normals, and what likely feels like an upended routine and way of life. If you were to add in the extra layer of uncertainty about citizenship and legal rights, which is the reality for many people in the United States who are navigating a divorce or custody battle with a green card, Deferred Action for Childhood Arrivals (DACA), or without any form of legal documentation, the process can evolve from overwhelming to foreboding and fear inducing.

We asked our Founding Attorney, Lewis Pacific Cascade, what options are available for individuals who are approaching a family law matter, but have reservations about involving the court in their case due to their immigration status.

“If we have undocumented litigants and parties, then it dramatically impacts how we handle [their case] as attorneys. We understand that, while state courts are not supposed to take into consideration a person’s immigration status, inevitably that's a public record. Those are public documents. It’s [not uncommon] that most immigrants who are undocumented don't want to go to court. But it’s important for these individuals to know that it is their right to fight for their case, and it's their right to go to court and not have a circuit court judge, least here in Oregon, take [their immigration status] into consideration,” says Pacific Cascade.

According to Pacific Cascade, a person is not required to discuss their immigration status with the circuit courts, and under Oregon law, every individual has the right to utilize the circuit court system for their family law matter, such as a divorce, custody, or support cases, without the threat of being subjected to unfair treatment or possible deportation. While this may be the case, for those who are hesitant to have their case go on public record, there are tools and systems in place, such as mediation, to help individuals come to agreements outside of the court.

“The concern [for an illegal immigrant] would be to avail themself to the courts and to the system—understandably, that's a scary thing for a lot of people. So we typically handle those [cases] outside of court through negotiations.”

While immigration status shouldn’t be a determination in court, it’s important to understand how it can affect negotiations.

“From a custody standpoint, [immigration status] is something that can affect a case. If there’s a custody determination, say the [opposing party] is making the argument that ‘this person may or may not be in the country for any given amount of time, so how can we give custody of kids to a person who is at risk of deportation’, that could create an issue,” says Pacific Cascade. “[Immigration status] is something that is technically irrelevant, but it inevitably comes into play and can impact a case, especially regarding kids. Less so on the asset side [of things], as a non-citizen can own property in the US. There can also be complications when garnishments come into play regarding support and child support. So there are obviously more complicated factors with cases like this, but everything's available under the law in Oregon.”

Even if immigration status adds a layer of complexity to a family law case, our firm encourages anyone in this situation to not let this situation prevent them from doing what is best for them and their family. According to Otis Pacific Cascade, a California Immigration Attorney and brother to Lewis Pacific Cascade, a person’s legal status does not renege their rights to fight for their case, regardless of their documentation.

“For the people that are in this situation: if you're going through a divorce, if you're going through life changes, if you're going to have a new birth in your family, or if you're going to need a will because someone's facing the end of their life--don't be afraid to assert your rights as a contribution to our community, even if our community isn't giving you a ‘document’, because you still do have rights. And it's important that people know and understand that and talk to lawyers that get this stuff and can help you to exert your rights, because you do have them,” says Otis Pacific Cascade. “So don't be afraid to fight your child custody case. Don't be afraid to fight to file for divorce if you're in a relationship that's not working for you. Don't be afraid to do what you need to do. And certainly talk to a lawyer who can have your back going through any process, and see what options are available to you there.

We asked Otis what he would advise individuals in this position to do when faced with a family law matter, and his answer is simple: do what is in your best interest, and don’t be afraid to assert your rights.

“Really my message for people is this: Congress and the law will get its act together someday. But in the meantime, you've got to live your life here and now. Don't back down from living your life. If you need a divorce, go get one. If you need to fight for your kids, fight for your kids. Because as far as we know, this whole thing called life, you only got one shot. So take advantage of it.”

If you have any questions for Lewis or Otis Pacific Cascade regarding family law or immigration law, please do not hesitate to contact our firm for further assistance. For additional information on how the family law process looks for individuals who have green cards versus DACA versus no legal documentation, we discuss this topic more extensively in our Modern Family Matters podcast, which can be found on our website. Our firm is here to be an advocate for every person in need of help, and to help them begin the process of paving a path towards a better and brighter tomorrow. Call us today to get started.