How can a permanent resident who illegally brought his or her child to New Jersey in order to escape abuse gain legal custody and ensure the child is allowed to remain in the United States?
In August, the Supreme Court of New Jersey ruled that Family Part judges may not grant “special immigrant juvenile” status to immigrant children who are residing in New Jersey illegally. According to the high court, Family Part judges are permitted to make determinations regarding the best interests of such children and ascertain whether a child who applies for special immigration status would be placed at risk for neglect, abuse, or abandonment if returned to his or her home country. After that, the Supreme Court stated the U.S. Customs and Immigration Service (“USCIS”) must make the final determination regarding a child’s immigration status.
Under the Immigration Act of 1990 and the William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008, the USCIS was authorized to make determinations regarding a child’s special immigrant status based on a state judge’s factual findings. This system allows those judges with the most experience in determining the best interests of minors to make such determinations regarding immigrant children residing in New Jersey. A minor’s immigration status must then be determined by federal officials at the USCIS.
In its recent decision, the Supreme Court considered two consolidated cases in which an immigrant child’s custody was at issue. In each case, a parent or other family member residing in New Jersey sought both custody and special immigrant juvenile status for the minors. The state high court ruled that Family Part judges are obligated to first consider whether a child is at risk for abuse or neglect by either parent. The court stated the best interests of an immigrant minor must then be communicated to the USCIS in order to assist the federal agency in making a final determination regarding the child’s special immigration status. The New Jersey Supreme Court’s holding also clarified that Family Part judges are required to rely on New Jersey law instead of the laws of a child’s home country when determining a minor’s best interests.
As this recent ruling demonstrates, child custody matters can be extremely complicated, especially when dealing with international travel and federal laws. Child custody arrangements normally work best when reached and carried out through the collaborative efforts of the parents. Unfortunately, this may not always be possible. Changing life events often create new challenges for a family. A knowledgeable family law lawyer can help.
For quality representation and helpful answers with your child custody case, you should talk to the New Jersey child custody attorneys at Goldstein Law Group. To request a confidential consultation, contact us through our website or give our experienced lawyers a call at 732-967-6777.
Justices Define Family Court’s Role in Child Immigration Cases, by Michael Booth, New Jersey Law Journal
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