Typically, children born during their parents’ marriage are considered jointly in the custody of both parents unless a court orders otherwise. That means either parent can make legal decisions for the child or care for the child without a court order. Where there is no court order to the contrary and the other parent is available to care for the child, the parent facing deportation may not need to take any steps to provide for custody of the child.
Typically, if the parents were not married when the child was born, the mother may choose the child’s last name. The child may take the mother’s last name, father’s last name or a hyphenated double last name or even a different last name from both parents on the birth certificate. In instances where the mother has been granted sole custody rights in a divorce or other legal proceeding, then she is typically the sole custodian of the child. However, it is not always the case that the mother is the sole custodian. For example, if a father is not named on the birth certificate, but there has been a court determination of paternity and/or the father has always been regularly involved in the child’s life, a court may determine that the father has equal custody rights. Some states, however, limit custody rights of unmarried fathers. If both parents are named on the child’s birth certificate, then they both will be joint custodians in many states.
If the parents are divorcing or previously divorced, then child custody rights are usually determined in the divorce documents. As explained below, a court can change these custody rights.
The child’s parents, other adult family members, or other adult individuals designated by a child’s parents may be able to initiate child custody proceedings in court. Family members who can initiate a custody proceeding may include siblings, grandparents, aunts, uncles or cousins, depending on state law. Other people who have cared for the child may be permitted to seek custody rights as well. In some states, but not all, courts will not grant custody to a third party (non-parent) over the parents’ objections unless the parents are found unable to care for the child.
Note: A custody order may be the easiest or only way for parents to ensure visitation rights after deportation, although a judge in a child welfare proceeding could also order visits.
Selecting a temporary guardian for your child in the event of an unforeseen circumstance typically does not put your parental rights at risk. In many states, a parent may revoke a temporary guardianship at any time and select someone else as the child’s temporary guardian by completing and notarizing a new guardianship designation form.
The “Best Interests of the Child” Standard
Regardless of who seeks custody of a child, a court will determine custody (and visitation rights) by using the “best interests of the child” standard. The “best interest” of the child typically will be the most important factor in the determination of custody. In determining the best interests of the child, the court may consider:
- The preference of the child, considered in light of the child’s age and understanding;
- The physical, emotional or educational needs of the child;
- The length of time that the child has lived in a certain environment and the likely effect a change will have on the child;
- The age, sex, background or other relevant characteristics of the child;
- The likelihood of harm that may be suffered by the child;
- The capability and willingness of the parent, or other person asking for custody, to meet the child’s needs and to put the child’s needs before his or her own; and
- The moral fitness of the person asking for custody.
Under most state laws, a request for custody must be filed in the child’s “home state.” The “home state” is the state where the child lived for at least six consecutive months before the child custody proceeding. If the person seeking custody is not the legal or biological parent of the child and lives in the same state as the child, the request for custody can be filed in the county where they live or where the child resides.
How Does a Court Establish Legal Guardianship?
Each state has a specific procedure for petitioning a court to have a legal guardian appointed for a minor child. Generally, these procedures are described in detail in the state’s domestic/family relations statutes or in the state’s probate statutes. The person interested in becoming guardian often must file a petition with the appropriate court. Then, the court will set a date for a hearing and decide whether it would be in the best interest of the child to have this person appointed as the child’s legal guardian.
When someone who is not the child’s legal or biological parent asks to be appointed as the child’s legal guardian, it is helpful to have a sworn affidavit from both parents stating that the parents’ wish to have the person appointed as the legal guardian of their child. If there is only one parent listed on the child’s birth certificate, that parent alone will sign the sworn affidavit. If both parents are on the child’s birth certificate, or if the parents previously divorced and were granted joint legal or physical custody, then both parents should provide such an affidavit. Without the affidavit from both parents, it is likely that courts would require a showing of a serious attempt to locate the missing parent and that obtaining the affidavit would be practically impossible.
In addition to having a formal court process to have a guardian appointed, some states permit a parent to designate a temporary guardian, as discussed below, who can make medical and school decisions for the child and, in some cases, travel with the child. Because not all states recognize this type of authorization and some limit the amount of time and circumstances where it can be used, it is important to check with a local legal expert before attempting this kind of an arrangement.
When Will a Court Determine Custody or Guardianship?
The time it takes, from start to finish, for a court to determine custody or guardianship is highly variable and may take anywhere from several months to over a year. Many factors will affect the amount of time a custody or guardianship case will take before the court makes its final decision. These factors include, among other things, whether the custody or guardianship petition is contested, the specific procedure for determining custody or guardianship in the jurisdiction, and how busy the court is.