Can I go to state court for divorce, child support, or child custody if I am undocumented?

 Immigration laws state that any person here without immigrant status is at risk of deportation, and by checking the news it is clear that this policy is in effect. While immigrants and those in the country without legal immigration status have limited rights compared to United States citizens, the United States Constitution conveys certain rights to all human-beings. These include rights under the 4th and 6th amendments, but also a right to public education, emergency medical services, and the right to file lawsuits in state and federal court. Unfortunately, just because someone has a right to do something doesn't mean he or she won't face consequences for other actions, such as entering the United States without a visa or overstaying a visa. So, is it worth the risk to file a lawsuit, such as a complaint for divorce, a complaint for custody, or a request for child support, if you are here illegally? 

As an attorney who represents immigrants in both removal proceedings and state proceedings, I am uniquely qualified to weigh a persons specific risk. I am able provide clients with an analysis of their immigration and family matter at the same time, allowing the client to make an informed decision. 

For example, Maria and her husband have a child who is 14 years old. Maria has been in the United States for 17 years after entering the United States without a visa. She does not have any criminal history and has never any issues with ICE. Maria's husband left 6 months ago and is no longer financially providing for their daughter. Maria is struggling financially, but her husband is threatening to take her daughter and all of their money if she files for divorce. Maria is afraid that ICE would arrest her if she has to go to court. Maria makes the smart decision and decides to talk to an attorney. Attorney Kate Stenlake would be able to advise Maria that 1) there is minimal risk to appearing in court for a child support hearing, 2) Maria may be eligible to apply for a permanent residency (green card) if she is caught by immigration, and 3) her husband cannot "take her daughter and all of their money" just because he says so. Maria should file for divorce and request child support. 

As another example, Luis has been in the United States for 4 years. He attempted to enter the United States at the border, but was caught and signed papers. He was released after his family paid a bail/bond on his behalf.  He and his partner separated 3 months ago and they have a 2 year old son. His partner is refusing to let him see his son and requesting that he pay child support of $500 a month . He wants to sue her and request full custody of their son so that he does not have to pay child support to her. He makes the smart decision to talk to an attorney. Attorney Kate Stenlake is able to determine what happened with his immigration case and discovers that he has a removal order because he missed a removal hearing in immigration court. She also determines that if Luis filed for custody, he could still be required to pay child support for the 3 months that his son was not living with him, and that under the Maryland Child Support Guidelines, he may actually have to pay $700 a month. She determines that because his partner does not work, but he has a full time job, without proof that his partner is not a good mother it is unlikely that he would succeed in obtaining full custody of their son. Because he has a final order of removal, he may want to avoid going to court, especially if there may be a child support order entered against him. Attorney Kate Stenlake could assist in preparing a Consent Agreement or Separation Agreement on his behalf to keep things out of court but still allow Luis to see his son. 

As you can see, each case is different and there are many factors that will determine what the best course of action is. When dealing with stressful and important circumstances such as divorce, child custody, and child support, it is vital to have a knowledgeable attorney and advocate on your side. I have dedicated my career to helping people during difficult situation and ensuring each person understands his or her rights in court. Contact me today at [email protected] or (410)881-3821 to get answers to your questions today.