Question: I was born here in Alpharetta, Georgia, and went to Milton High School. I graduated from Georgia State University. My wife is from India and she came over from Mumbai on a temporary study visa to attend Georgia Tech. We got married after dating for just three months because she got pregnant.
We have one child. But her visa expired. I was helping her with the immigration process. In June, my wife took a TPO against me in the Fulton County Superior Court. I was drinking too much and we had a fight, but I really never hit her, but I did scare her. (She actually hit me, but not hard.) We reached an agreement and we both dismissed the TPO at a temporary hearing since a divorce was already filed. We agreed to week to week custody (a 50/50 parenting plan).
Here's what I need to know: If my wife gets deported back to India and I'm not the primary, will ICE leave the child with me or will the child be deported with the mother? If she somehow got a green card will that change any of the scenarios?
Mark in Alpharetta, GA
Answer: The child was born here so the child is a United States citizen and shouldn't be able to be deported even if the mother is deported. Joint legal custody will protect the child as you will have equal authority with the mother to make decisions over where the child is living.
If she gets deported, you should automatically receive custody, as long as you have secondary rights in a parenting plan. A layer of protection would be to have you be educational tiebreaker so you can always choose what school the child attends, and thus decision making authority over which school district the child lives within.
The Court may be reluctant to give primary custody of a child to a party who is in the US illegally because living with a parent who could be deported at anytime is not in the best interests of the child. (In Georgia, this is truer in some counties than others.)
If she obtains a green card, this strengthens any claim she may have to be either primary legal custodian or even joint legal custodian and reduces the chances that the child would ever be at risk for an immigration review. If she is in the country legally, the decision on who will be the primary custodian will revert to the best interest factors.
Caution/ Red Flags: Be careful because as part of the immigration process the citizen (the husband in this case) may have signed an agreement to support his wife, which will control even if he would not otherwise have to support her in a divorce situation. Also, there may be motivation for a non-citizen to claim to have been abused to obtain a legal right to be in the US. The TPO may not have been motivated by an actual abusive situation but rather as grounds for legal status.
We you need an Alpharetta divorce lawyer, call us at 678-215-4106.