Immigration Status and the Best Interests of the Child Standard
The vast majority of states use a “best interests of the child” standard to determine what custody arrangements are appropriate in contested cases of all kinds. The “best interests” inquiry frequently requires courts to consider the relationship the child has with each parent and the child’s physical and emotional needs. The question judges find themselves asking when a custody case involves an immigrant parent is “can or should the immigration status of a parent be considered in applying the best interests standard?” This essay argues that in most cases the immigration status of a parent is likely to be an irrelevant factor in determining the best interests of the child; if anything, it will serve the dangerous function of as acting as a repository for the unconscious biases and punitive impulses of judges against immigrant parents. In some cases, however, such as where there is evidence that an immigrant parent is about to be deported and intends to take the child with him or her to a jurisdiction where the other parent will not be able to assert legal custody or visitation rights, immigration status would be relevant to a “best interests” inquiry. The essay proposes a solution to the dilemma of when to consider immigration status in the form of a rebuttable presumption that immigration status cannot be used as a factor in the best interests analysis. The presumption could be rebutted in specific classes of cases (like the one outlined above) where immigration status is likely to be highly probative and unlikely to be used for prejudicial reasons.