Can an Illegal Immigrant Get Custody of a Child?

May 21, 2024by Adam Sacks

Illegal Immigrants and Child Custody

When it pertains to child custody decisions, there are numerous factors that come into play, regardless of a parent’s immigration status. The court tends to be focused on the best interest of the child involved, rather than making custody decisions solely on a parent’s legal citizenship status.

In custody cases, judges consider various aspects, such as the ability to provide a stable home environment, financial capabilities, and the parent’s ability to meet the child’s physical and emotional needs.

While immigration status can be a factor used in decision-making processes, it alone does not determine the outcome of custody battles. Courts aim to ensure that children are not punished for their parent’s legal circumstances. Instead, the primary focus remains on assessing the parent’s ability to provide a safe and nurturing environment.


Can You Get Custody of A Child as An Illegal Immigrant?

Although an illegal immigrant’s precarious legal standing could indirectly affect custody decisions, particularly if there is a risk of deportation which could destabilize the child’s living situation, the primary focus remains on the welfare and emotional well-being of the child.

Therefore, while the legal challenges and risks associated with the parent’s immigration status cannot be overlooked, it is indeed possible for an illegal immigrant to be granted custody of a child. The outcome heavily depends on demonstrating that the parent can offer the best possible environment for the child’s growth and development, despite their legal circumstances.

Legal assistance from professionals well-versed in both immigration and family law is helpful in navigating these complex cases.


Can You Get Custody of A Child as An Illegal Immigrant?


Immigration Laws and Child Custody

A parent who is undocumented or does not have legal status may face increased difficulties in maintaining custody of their child. This is due to the perception that they may not be able to provide a secure and stable environment for the child.

Family law courts consider a parent’s ability to provide for the child’s basic needs, including housing, medical care, and education. The parent’s immigration status can negatively impact their ability to access essential resources and services.

Immigration laws can impact a parent’s employment opportunities, directly affecting their financial stability and ability to support their child. Undocumented parents may face limited job prospects or may be vulnerable to exploitation due to their lack of legal status.

In some cases, immigration status may not significantly impact child custody, especially if the parent can demonstrate their ability to provide a safe and nurturing environment. In other instances, the parent’s immigration status may be considered a negative factor in custody decisions, potentially leading to the separation of families.


Can an Order of Removal Be Cancelled Due to A Child Custody Case?

In certain cases, a child custody dispute can have significant implications for the cancellation of an order of removal for an illegal immigrant.

One consideration immigration takes is the impact on the child if the parent is deported. Authorities may weigh this heavily when assessing whether to cancel the order of removal. If it is determined that deportation would result in harm or disruption to the child’s well-being, immigration authorities may be more inclined to consider canceling the order. It is ICE’s policy to not unnecessarily disrupt the parental rights of non-citizen parents. [1]

Custody cases do not automatically lead to the cancellation of an order of removal. The specifics of the case, including the nature of the relationship between the parent and the child, the parent’s involvement in their upbringing, and the child’s needs and preferences, will all be taken into account.

Depending on the circumstances, several potential outcomes or options may be available to the illegal immigrant parent. These can range from the cancellation of the order of removal, allowing the parent to remain in the country, to the granting of additional time for the parent to make custody arrangements before deportation.


Can an Order of Removal Be Cancelled Due to A Child Custody Case?


Joint Custody and Undocumented Parents

Joint custody refers to a custody arrangement in which both parents share the responsibilities and decision-making authority for their children. For undocumented parents involved in custody disputes, there are several implications and considerations to take into account.

One significant implication of joint custody for undocumented parents is the potential risk of deportation. In some cases, being involved in a custody dispute may increase the chances of being detained by immigration authorities.

Undocumented parents may also face challenges in establishing their ability to provide a stable and safe environment for their children when their immigration status is called into question. In most cases, joint custody may require cooperation and communication between parents, which may be difficult due to fear of deportation or contention in the relationship.

Achieving joint custody for undocumented parents requires providing evidence of parental fitness, and demonstrating a commitment to doing whatever is best for the child.  Potential challenges may arise, such as limited access to legal resources and discrimination within the legal system based on immigration status.


Can The Child Custody Process Affect a Parent’s Process of Gaining Legal Status?

The outcome of the child custody process can significantly impact a parent’s legal status. For instance, if a parent loses custody of their child, this may affect their eligibility for certain immigration benefits or applications. In some cases, if the parent is relying on their child’s status to maintain their own legal immigration status, losing custody may lead to the parent’s own legal status being compromised.

Parents facing a child custody process while seeking legal status also have to balance their efforts to prove their suitability as a custodial parent with their focus on gaining legal status, which can be an overwhelming task.

The child custody process involves emotional stress and potential strain on family dynamics. These emotional and psychological challenges can affect a parent’s overall well-being, potentially impacting their ability to focus on their legal status.


Can The Child Custody Process Affect a Parent's Process of Gaining Legal Status?


If you are interested in pursuing custody, regardless of your immigration status, contact Sacks & Sacks for a free consultation today.



Q. Does immigration status affect child custody?

Immigration status alone does not determine child custody outcomes. Courts focus on the child’s best interests, considering factors like emotional bonds and the parent’s ability to provide stability rather than their legal status [2]

Q. Do family courts consider the immigration status of a parent?

Family Courts allow non-citizens and undocumented individuals to file petitions, emphasizing that legal status does not impede one’s right to participate in custody proceedings [3]



[1] U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (2022, July 14). ICE. Retrieved May 20, 2024, from

[2] Pumphrey, C. (2019, March 21). How Does Immigration Status Affect Child Custody? FindLaw.

[3] The Rights of Immigrants in Family Court. (n.d.). Family Legal Care.

by Adam Sacks

Adam Sacks is lead Family Law Attorney at Law Offices of Sacks & Sacks, P.A. in Jacksonville, Florida. He has a BA in Psychology from 1994, and received his Juris Doctor Degree in 1999 from the Western Michigan University Cooley Law School.

Sacks and Sacks Law
1646 Emerson St. Suite B Jacksonville, FL 32207

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