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Attorneys Vic Hill and Brad MacDonald

Illegal Immigrant’s Child Custody Case Under Scrutiny

A recent Missouri case is drawing interest from across the country for the issue it presents, namely, whether an illegal immigrant can lose child custody rights to her child after being convicted of identity theft.

The matter was set in motion in May 2007, when a Guatemalan woman was arrested at a Missouri poultry plant in an immigration raid. Her son – then just seven months old – was taken from her and, at her request, given to a clergy family to care for while she sorted through her legal problems.

Things went wrong for her when, while she was still imprisoned, the child was introduced to and adopted by another family in October 2007, which legally terminated the biological mother’s parental rights.

From that point, the matter began its sojourn through the Missouri state courts, commencing with a circuit court opinion that affirmed the adoption based on its finding that the woman had abandoned her son. That issue – whether imprisonment equates to abandonment – is what is now being considered on appeal by the Missouri Supreme Court.

In recent arguments before the Court, the woman’s attorney argued that being unable to care for one’s child owing to an imprisoned status is altogether different from actively abandoning the child, and that the central test in a child custody case – the best interest of the child – “includes the presumption that you preserve the natural parent-child relationship.”

The adoptive parents countered that, in all but a biological sense, they have been the parents of their adopted son for the past three years and that they fully complied with the state legal requirements for adopting him.

The Court has yet to make its final decision.

Related Resource: “Missouri Supreme Court hears illegal immigrant child custody case” November 9, 2010