California Justices Lift Child Custody Hurdle for Asylum-Seeking Kids

SAN FRANCISCO (CN) – Reversing a trial court and an appellate panel, the California Supreme Court ruled Thursday that asylum-seeking children with one parent living in the United States need only notify the foreign parent of their plans to seek resident status in the United States.

The unanimous 23-page opinion written by Justice Leondra Kruger removes a large barrier for children seeking permanent residency.

In 2016, 10-year-old Honduran national Bianka M. entered the United States unaccompanied and without authorization with the intention of seeking asylum and living with her mother Gladys. She filed papers in Los Angeles County family court asking to be placed in her mother’s custody, and filed for a special immigrant juvenile status under federal immigration law so she could receive a visa and apply for permanent residency.

While Bianka said she wanted to escape the violence in Honduras and start a new life with her mother – to whom she’d remained close even after her mother left for better opportunities in the United States – both the family court and a Second Appellate District panel ruled the girl’s father had to be joined as a party in order for the court to have jurisdiction over his possible interests in the case.

Bianka’s father had never been a part of her life and though she’d notified him of her efforts to obtain special immigrant juvenile status, he made no effort to involve himself in the case.

Writing for the unanimous panel, Kruger said nothing in state law requires joinder of the father in this case.

“Bianka asks for three things in this proceeding: (1) the establishment of a legal mother-child relationship with Gladys; (2) an award of sole legal and physical custody to Gladys; and (3) findings relevant to special immigrant juvenile status, including findings concerning the prospect of reunification with Jorge. Certainly Jorge’s participation is not essential for the court to determine the existence of a mother-child relationship between Bianka and Gladys. And although Jorge is certainly entitled to be heard on the remaining two matters if he chooses, he is not indispensable to their resolution,” Kruger wrote.

The high court found that despite the family court’s concerns Bianka’s action would effectively terminate the father’s parental rights in absentia, case law allows courts to award sole custody even when the other parent resides outside the United States as long as the other parent receives notice of the action, as Bianka had done here.

“Were it otherwise, the nonresident parent would have an effective veto over the adjudication of parental custody rights in the minor’s best interests,” Kruger wrote.

California Attorney General Xavier Becerra called the high court’s opinion a win for immigrant children who were abused or neglected in their home country and said it will remove a hurdle for those seeking to obtain permanent residency.

“I urge California courts to quickly process these children’s requests so that they may apply to the federal government,” Becerra said in a statement. “It is my hope that the federal government will open its heart to these most vulnerable newcomers.”

Bianka, now 13, lives with her mother in Los Angeles.

 

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