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Father Seeking Custody

Started by PhoenixTeacher, Jul 12, 2005, 09:27:22 AM

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PhoenixTeacher

I am new to this site. I am actually writing for my friend. He has an 18 month old son that he wants to have joint custody of, but his situation is, of course, very complicated. I was hoping I could find some advice for what his options are. Here is the deal: He was with his ex-girlfriend for 5 years, but they never married. They had a son in their 5th year together and separated shortly after. Since their son was about 6 months old, she has had him and he gets to take him for the day every Sundays. This arragement was mostly because his construction job schedule did not fit the hours of dropping off and picking up at the daycare to permit him to keep his son overnight during the week. So, for the past 12 months he has been paying about $150.00/week in child support to his ex-girlfriend and seeing his son every Sunday. They never went to court to decide on this arrangement, it was amicable and he pays the child support through Child Support Services in Arizona so it is documented. Recently, however, he got a new job that will permit him to see his son much more often. He would like to have a larger role in his son's life, and wants joint custody so he can be with his son every other week or weekends and holidays, etc. He tried to talk to his ex about this and she said "No Way!" and ignorantly told him "you won't take my baby away from me," not realizing of course that having two loving, present parents is better for children than having only one. I told him to go to court to file for joint custody, but he is not sure how or if this is possible.

Here are the facts:
-He is an illegal alien from Mexico
-They were never married
-Both are physically and emotionally (as well as can be expected sometimes) fit to care for the child, but neither makes very much money.
-He cannot afford a lawyer

Does he have a chance to get any type of custody through the courts, especially being an illegal alien? I don't know much about that part or his situation, but I suspect it makes things more complicated. He would appreciate any advice, he came to me thinking I might know what to do and I didn't know what to tell him. Thank you!!
~Angie

socrateaser

>Does he have a chance to get any type of custody through the
>courts, especially being an illegal alien? I don't know much
>about that part or his situation, but I suspect it makes
>things more complicated. He would appreciate any advice, he
>came to me thinking I might know what to do and I didn't know
>what to tell him. Thank you!!
>~Angie
>

Not being a U.S. citizen is not a bar to obtaining a custody order. The facts show that the father has been regulary paying support and exercising voluntarily permitted visitation with the child, which shows an established parent-child relationship. This will likely influence the court to award more time with the child, and perhaps even joint custody.

However, accomplishing this without legal representation is very difficult, especially as the facts suggest that the mother will oppose awarding any more time to the father. I suggest that your friend contact the legal aid organization to see if he can obtain free legal counsel.

PhoenixTeacher

Thank you for your help! He is  concerned however that if he goes to court they will see he is illegal and send him back to Mexico. That is the main reason why he has not gone to court already and tried to work out custody with his ex amicably. Do you know if the court would care that he is illegal? Or should he speak with legal aid about this? Thank you so much for your help!
~Angie

socrateaser

>Thank you for your help! He is  concerned however that if he
>goes to court they will see he is illegal and send him back to
>Mexico. That is the main reason why he has not gone to court
>already and tried to work out custody with his ex amicably. Do
>you know if the court would care that he is illegal? Or should
>he speak with legal aid about this? Thank you so much for your
>help!
>~Angie

The court will be concerned in the respect that the father may be deported and thereby unable to exercise visitation/custody. This would be a relevant argument for the mother to make to oppose father being named primary caretaker. However, to be named primary caretaker requires a finding that the status quo of mother as caretaker not be in the child's best interests, and I don't see any facts to support this, so the father's illegal status will have little weight in the custody decision.

Regarding the court holding the father for transfer to the INS for deportation, as far as I am aware, State law enforcement authorities are prohibited from enforcing U.S. Immigration law, so that would prevent the court from holding the father on an illegal status violation.

I would definitely discuss the matter with local legal aid, but I'm fairly certain my interpretation is correct. If you discover that I'm wrong, please come back here and let me know.