By Lindsay Faulkenberg, Kids' Voice of Indiana
Being a lawyer at a non-profit organization often lends itself to unique opportunities in the community. Recently, Kids’ Voice became a member of a newly formed coalition – COIN (Coalition for Our Immigrant Neighbors.) The vision of COIN is of a Central Indiana professional community that is responsive to the unique needs of our Central Indiana immigrant population. Recently, COIN held a continuing education seminar at IndyBar with a particular focus on filling gaps in legal services and educating lawyers and social service providers on being more culturally competent. My practice at Kids’ Voice doesn’t entail immigration law, but we do often serve families and children who are immigrants, refugees, for whom English is a second language, and so on. I recently learned that the foreign born population in Marion County increased 42% between 2000 and 2011, and the Hispanic population in America is growing more by birth in American than by immigrating to America. In fact in Indiana, there has been a 61.6% increase in foreign-born population. As more and more of these families became involved in our agency, we wondered if we were able to better serve them. This led to our participation in COIN. I thought some of what I have learned through COIN could apply to many family law practitioners as well.
For example, during the recent COIN program, one of the ethical scenarios presented was: “Your client is a parent, facing deportation or at least an uncertain right to stay in the U.S. Chances of remaining in U.S. are better if client has custody but deportation may occur before a decision is made. Time is running against client. Other parent is documented. What are the ethical considerations in delaying the custody case? What if the family law court is not aware of the potential deportation? What are the ethical obligations of the attorney to the other parent and to the court?”
This question raises a lot of ethical and strategic questions. Ethically, we have an obligation to serve our clients as competently as possible, but many times, attorneys in competent in one area of law isn’t always sure whether or not the outcome of a custody, criminal or other case will effect a person’s immigration status. That could require using time to consult a colleague on immigration issues or other resources in our community to find out if you don’t know how it will affect your family law client. If you are representing your client in a dissolution, but they have immigration issues, refer them to an immigration attorney for those issues, but make yourself knowledgeable as well. What you do in the dissolution case could directly affect the outcome of that client’s immigration status. Strategically, you may have to ask for a continuance in the custody or immigration case if needed. We do not want to unnecessarily delay one case or the other, but the outcome of one case may substantially effect the outcome of the other. Often the evidence used in the custody case may also be the same or substantially similar to that used in the immigration case. If your client has an immigration attorney, work together. It could benefit your client’s case.
Often times, immigrants will take advice from those in their own communities because they trust that person, but the advice may not be legally sound. So, if we are able to become more culturally competent to serve our clients, perhaps they will take our reliable advice more often. I suppose we could hope that to be true for ALL of our clients. I have learned that language can also be a barrier even when we don’t think it is. Some people say yes because they are listening, but not because they understand. If anyone is in need of resources to help in cases like this, let me know! There are many people and organizations that COIN can connect you with.
There are not yet many Indiana cases that address how one’s immigration status can effect custody and parenting time issues. In my experience, courts have not weighed heavily upon a parent’s immigration status when deciding whether to award custody or parenting time to that parent. It could be argued that the prejudicial nature of a client’s immigration status outweighs it probative value.
In one case I had, the Mother’s substance abuse issues were so severe, that is was clearly in the children’s best interest for Dad to have custody. Mother was a citizen, but Father was not. Mother argued that Father’s immigration status should preclude him from having custody. The circumstances in that case led us to believe that Father had no intention of taking the children out of the country – he had two jobs, his whole family was here and his immigration status was pending. It is likely that Father getting awarded custody assisted him in his immigration case.
In another case I had, Father’s immigration attorney was able to continue his immigration hearing because the outcome of the custody hearing was likely that he would get custody, but then the Court awarded Mom and Dad joint physical and legal custody. The Court was well aware of the Father’s immigration status when issuing the final order. Father had brought it to the Court’s attention as a reason for objecting to a continuance of the final custody hearing. Kids’ Voice was released from the case, so I never learned the outcome of his immigration case.
Other cases you can refer to: In Re A.P., 882 N.E.2d 799 (Ind. Ct. App. 2008), In Re L.H., 45A04-0906-CV-320 (unpublished opinion from March 23, 2010) and In Re X.B. and L.B., 71A03-1201-JT-26 (unpublished opinion from August 7, 2012. There is also a disciplinary case that may be worth referring to: In Re Barker, 993 N.E.2d 1138 (Ind. 2013). None of these are particularly on point, but may provide guidance. If anyone knows of any others, please share!
On November 22, the Indiana Supreme Court will hear oral arguments in a personal injury case where one of the main issues is whether or not the injured person’s immigration status should have been considered by the lower court. Obviously, this is not a family law case, but the arguments being made on both sides, and ultimately a decision, may permeate into family law cases. The Court Appeals decision can be accessed here. The article about the case in Indiana Lawyer can be found here.
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