By Elizabeth Tran, Houston Volunteer Lawyers
Last year I attended the 20th Annual Texas Bar College Summer School CLE at Moody Gardens. During an expansive review by Cindy Tisdale on new caselaw affecting family matters, one case, Turrubiartes v. Olvera, stood out to me the most. It addressed issues that quite often come up in my consultations with immigrant families weighing their options for divorce or suits seeking “custody” of the children.
In Turrubiartes v. Olvera, the trial court determined that the mother’s immigration status alone was sufficient to award the father sole managing conservatorship of the children. The father was a United States citizen and the mother was undocumented. During the trial, the father raised concerns about the mother driving without a valid driver’s license and the risk that the police could pull her over while she was with the children and place her in deportation proceedings. The trial court ordered that the mother had to provide a licensed driver to transport the children to and from their periods of possession. The trial court ruled that being undocumented was sufficient to overcome the presumption of appointing both parents joint managing conservators. If upheld, this decision would have a crushing effect on immigrant families, especially those facing abusive relationships where threats of deportation are a means of control and intimidation.
The mother filed a motion for new trial asserting that the trial court erred in considering her immigration status, but the trial court denied the mother’s motion and she appealed. In the trial court’s findings supporting its decision, 13 findings related to conservatorship and nine of those addressed the mother’s immigration status. Among other things, the trial court concluded that the mother lacked stability, “due to her immigration status” but by contrast, the father was a United States citizen. Upon rehearing, the 1st Court of Appeals ruled that “immigration status, standing alone, is not probative of [the mother]’s fitness to be a parent to her children so as to deny her joint managing conservatorship.” The court of appeals noted that the trial court heard no evidence regarding any detention or immigration-related charge, any pending removal proceeding, or that the mother was a subject of any criminal prosecution. The trial court expressly found that there was no evidence that immigration authorities had ever detained the mother, or that she was the subject of any removal proceedings. The court of appeals reversed and remanded the case back to the trial court because it erred by using absent evidence as a basis to deny joint managing conservatorship.
In my experience and politics aside, undocumented families face many barriers to legal access, making this population one of the most vulnerable and underserved. This is not only an issue at the borders. Many families that have raised their children in Houston face this same fear when the marriage relationship or parental relationship goes awry and threats of deportation and alienation occur. These families consist of members of different statuses, combinations of United States citizens, green card holders, undocumented persons, and those at different stages of the immigration process. In a recent article published by Jodi Berger Cardoso, an assistant professor in the Graduate College of Social Work from the University of Houston, it was estimated that about 5.1 million children in the United States live with at least one undocumented parent, which is roughly seven percent of the entire United States child population.[1] In her research, Cardoso found that undocumented parents felt trapped and burdened by the constant threat of separation from their children and discouraged by how their undocumented status affects child wellbeing and family processes.[2] Undocumented families face a litany of obstacles that hinder their ability to effectively parent, but when I heard Cindy Tisdale discuss the recent Turrubiartes v. Olvera decision by the 1st Court of Appeals I saw a glimmer of hope.
In the eight years I’ve worked in the immigration and family law field,
I’ve been asked many times if a parent’s immigration status can affect the
outcome of a divorce or custody proceeding. Though my answer always depends on
the many other factors in each person’s case, the decision by the 1st
Court of Appeals in Turrubiartes v. Olvera gives immigrant families a clearer
line of defense when abusers use threats of deportation to intimidate and deter
a party from calling the police, pursuing a divorce, or requesting custody of
their children.
[1] Berger Cardosa, Jodi. (2018) Parenting in the Context of Deportation Risk. Journal of Marriage and Family.
[2] Id.