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How Your Immigration Status Affects Time Sharing (Child Custody)

| Jan 20, 2021 | Immigration Law

Making the decision to divorce your spouse and going through with the process is — without question — a major life event. The stress and intense emotions you experience might be compounded by either your own immigration status or your spouse’s, not to mention worrying about the fate of your children. Who will they live with? If you are denied time-sharing, will you get a chance to see them before they become adults?

So many parents across Florida and the U.S. are forced to deal with these heartbreaking situations. Fortunately, there is some good news for parents who are not lawful permanent residents (green card holders) and divorcing their spouse.

First, Are You Even Able to Get a Divorce?

That’s a good question. You do not have to be a U.S. citizen to file for divorce in Florida. As long as you or your spouse have resided in the state for a minimum of six months, you will be able to file for divorce. However, things can get complicated if there are minor children involved. One issue that may arise is if you or your spouse are here on an employment-based visa or employment derivative visa you and/or your spouse may be forced to return to your home country. If this is the case, a long distance time-sharing schedule will have to be created.  It is recommended that you work with an experienced family law attorney who understands how your immigration status may affect the children’s timesharing schedule.

Best Interests of the Child

In Florida, timesharing (physical custody) is determined according to the “best interests of the child” legal standard. In other words, the court will decide living arrangements for your children based on what will best meet their needs.

The best interests standard is made up of 20 factors courts look at when determining a parenting plan. Those factors include the length of time the child has lived in a stable and satisfactory home environment and the geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan.  Although the immigration status of a child’s parents is not specifically listed as one of those 20 factors, there is a catch-all factor in which the court can consider that states “[a]ny other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.” Accordingly, an individual’s immigration status may impact how the Court awards timesharing. Additionally, the Court may also impose travel restrictions on one parent’s time.

Conclusion

Immigration and family law matters are complicated enough on their own, however, when these both areas of law intersect in a case things can get extremely complicated fast. If you or someone you are in a divorce proceeding or is contemplating a divorce and there may be immigration issues that come up, it is absolutely essential for you to enlist the help of a law firm with experience handling legal matters that touch on these areas. Rotella & Hernandez focuses on providing legal counsel in the areas of family law and immigration; our team would be honored to discuss your options with you today. Call us at 305-596-3618 to see how we can be your legal partners and allies.

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