{"id":10899,"date":"2018-03-06T16:30:39","date_gmt":"2018-03-06T21:30:39","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10899"},"modified":"2018-03-06T16:42:17","modified_gmt":"2018-03-06T21:42:17","slug":"family-disunification-how-family-courts-are-tearing-undocumented-parents-and-their-children-apart","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/family-disunification-how-family-courts-are-tearing-undocumented-parents-and-their-children-apart\/","title":{"rendered":"Family Disunification: How Family Courts Are Tearing Undocumented Parents and Their Children Apart"},"content":{"rendered":"

When President Trump made his \u201cshithole\u201d countries<\/a> comment earlier this year, he revealed the ugly undercurrent of racism that has animated U.S. immigration law and policy since the Republic\u2019s founding<\/a>.<\/p>\n

Whether such sentiments are made explicit or not, notions of which immigrants are \u201cworthy\u201d or \u201clegal\u201d bleed into the lives of immigrants and impose enormous restrictions on the rights and privileges of non-citizens, particularly undocumented persons. Some of these barriers facing non-citizens are already well-known, such as the denial of welfare benefits<\/a>, precarious access to higher education<\/a>, and most recently the sanctioning of indefinite detention<\/a>. But a lesser known barrier undocumented persons face is the subtle paring down of their right to raise their own children.<\/p>\n

Despite a long history of Supreme Court precedent upholding the fundamental right of parents to custody and care of their children, child welfare agencies and family courts across the country have been separating children from their undocumented parents on the basis of immigration status.<\/p>\n

The rights of parents to care for their children have long been recognized, dating back to early 20th<\/sup> century decisions affirming the liberty interests of parents<\/a> in making education decisions<\/a>. More recently, in Troxel v. Granville<\/a>, the Supreme Court reaffirmed parents\u2019 Fourteenth Amendment substantive due process right to custody over their children. Accordingly, there is a presumption that when a parents make decisions for their children, they have their best interests in mind. Only when a parent is found to be unfit does a court ask whether it is in the best interest of the child to be removed.<\/p>\n

Importantly, since the Fourteenth Amendment extends protection to all persons<\/a>, this right is held by citizens and non-citizens alike.<\/p>\n

However, these important parental interests have been undermined by racial stereotypes wielded by state authorities to intervene and disrupt families of color for generations. Child welfare agencies and government lawyers have used the tropes of the absent Black father and the deviant Black mother<\/a> to translate the fact of poverty into accusations of neglect, resulting in a vastly disproportionate number of children of color in the foster care system. (For a classic treatment of racial injustice in the child welfare system, read Shattered Bonds: The Color of Child Welfare<\/em><\/a> by Dorothy Roberts).<\/p>\n

Likewise, a similar dynamic occurs when notions of undocumented immigrants\u2019 \u201cillegality\u201d interact with the discretion exercised by judges in the family law context. According to David Thronson, deeply ingrained narratives<\/a> of undocumented persons\u2019 illegality, and their consequent unworthiness of rights protections, have been accepted by many family courts. In some cases, family court judges have gone so far as to refuse custody to undocumented parents on the basis of their immigration status alone. In Georgia, an undocumented father\u2019s child was removed from his custody and his parental rights terminated because, although he was not facing removal by immigration authorities at the time, there was a possibility that he might be deported one day<\/a>.<\/p>\n

More often, though, courts will couch discrimination on the basis of immigration status in terms of parental fitness.\u00a0 In re Interest of Angelica L<\/a>.<\/em> is illustrative of this logic: the family court found an undocumented mother from Guatemala to be unfit and terminated her parental rights over her newborn daughter because \u201cthe status of an undocumented immigrant is, no doubt, fraught with peril.\u201d Although the Nebraska Supreme Court later reversed that decision, such reasoning is widespread among family courts and is often affirmed at the appellate level.<\/p>\n

In Missouri, the state Court of Appeals upheld a decision by the juvenile court terminating a mother\u2019s parental rights by characterizing her status in the country as \u201ccriminal activity\u201d and finding that, as a law breaker, she was unfit to parent. Commenting on the case, Anita Ortiz Maddali observed that when the narrative of illegality seeps into family law assessments, it obscures the fact that<\/a> \u201cthese are parents who desperately want to care for and provide for their children, which can be their primary motivation for migrating.\u201d<\/p>\n

Moreover, family courts are increasingly ignoring questions of parental fitness when terminating undocumented parents\u2019 rights, instead focusing on their own determination of the child\u2019s best interest<\/a>. For example, in Anita C. v. Superior Court<\/a><\/em>, the California Court of Appeal\u2019s decision to uphold the removal of a child from his mother\u2019s custody focused solely on discussions of the child\u2019s interests; tellingly, the word fitness does not appear in the opinion.<\/p>\n

The result of this troubling dynamic is that, according to a 2011 study<\/a>, 5100 children of detained or deported parents are currently in the foster care system. Moreover, over half a million U.S. citizen<\/a> children have had at least one parent deported. The impact of parental separation and deportation is obviously devastating for children, leading to long-term developmental and behavioral issues.<\/p>\n

The perverse irony is that the goal of both the family welfare and immigration systems purports to be family reunification. But the corrosive effect of anti-immigrant sentiment has distorted these purposes, splitting families apart and placing insurmountable obstacles in the path of parents who have made incredible sacrifices for their children.<\/p>\n","protected":false},"excerpt":{"rendered":"

When President Trump made his \u201cshithole\u201d countries comment earlier this year, he revealed the ugly undercurrent of racism that has 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