The ACLU defines racial profiling as law enforcement and private security practices that disproportionately target people of color for investigation and enforcement.
However, immigrant profiling in custody cases is just as rampant, where immigrants are disproportionately targeted because of their national status and loose custody based solely on their national origin. America is a multi-cultural and multi-ethnic society. Some of our ancestors have arrived from Ireland, Africa, Spain, Mexico, Germany, Canada and so forth. Basically every nationality and language is represented in one form or another in the United States. Some of us pass on our customs and heritages to our children and they are considered traditions. Some of our expressions are still rooted in the language of our ancestors’ home country. One study revealed that 23% of all children in the United States have a parent who is an immigrant, (Passel, Jeffrey, and Paul Taylor. “Unauthorized Immigrants and Their U.S.-Born Children.” Pew Hispanic Center, August 11, 2010).
So imagine a scenario where based upon these traditions, based upon your national heritage your children are removed from you. There was no “finding of unfitness”. Merely a finding of “you are a permanent resident not a U.S. citizen”. So in other words if a parent has an Irish lilt to their language, a Scottish brogue, a German accent or a Hispanic accent or a Canadian uses the “aboooooooouuuuttt” abundantly you are automatically deemed not fit to raise your children.
This was not even an issue raised by the abusive xenophobic other parent who did not not have a problem with the other parents national origin during a marriage but screamed from the roof tops in almost every proceeding that a permanent resident who has not left the country in fourteen years is a “foreigner”. The “foreigner” this the “foreigner” that, echoed in almost every filing that the court was blessed with, merely to incite a xenophobic court. The point was of course to deflect from that parent’s own actions.
Now we would assume that this is an issue that this has not been explored in U.S. family law. Surprisingly it has. California law prohibits discrimination based on immigrant status. Specifically CA family code 3040 (b) specifies that the immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a). If we allowed a precedent to exist where custody is lost due to the national origin of a parent, who is going to prevent a court from removing custody from a parent who has a heavy Texas accent and hollers “Ya’ll” in court proceedings in the State of California? Just the holler alone would be enough to create a flight risk assumption based on the emotional attachment of the holler to another state.
Parents have fundamental liberty and privacy interests in the care and custody of their children, a right protected by the U.S. Constitution, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). These constitutional protections regarding the parent-child relationship apply equally to all parents and children without regard to immigration status. The Supreme Court of Nebraska addressed this issue in a unanimous decision (In re Interest of Angelica L., 277 Neb. 984, (2009)) stating that there is an:
“[o]verriding presumption that the relationship between parent and child is constitutionally protected and that the best interests of a child are served by reuniting the child with his or her parent. This presumption is overcome only when the parent has been proven unfit.”
The Nebraska Supreme Court found that an immigrant parent does “not forfeit her parental rights because she was deported.”The right applies to all immigrant parents, without regard to their immigration status, whether or not the parent is deported from the United States. Further the court stated “we do not conclude that Maria’s attempt to bring herself and her child into the United States, in the belief that they would have a better life here, shows an appreciable absence of care, concern or judgment.” The Supreme Court confirmed that courts in best interest cases should not engage in “culture clash” comparisons.
“Whether living in Guatemala or the United States is more comfortable for the children is not determinative of the children’s best interests. We reiterate that the best interests of the child standard does not require simply that a determination be made that one environment or set of circumstances is superior to another.”
Other courts have recognized that decisions must be based on clear and convincing evidence of parental misconduct or inability, and not speculation the “vagaries or vicissitudes that beset every family on its journey through the thickets of life, (In Re M.M., 587 S.E. 2d 825, 833).
The American Bar Association has also recognized the deflecting tactics of an abusive ex spouse who raises the immigrant’s national status as an “issue”.
“Batterers whose victims are immigrant parents use threats of deportation to avoid criminal prosecution for battering and to shift the focus of family court proceedings away from their violent acts…When the judicial system condones these tactics, children suffer. Victims of domestic violence who cannot receive relief from the criminal justice system, or who risk losing custody, return to their batterers… In addition, parties should not be able to raise, and courts should not consider, immigration status of domestic violence victims and their children in civil protection order, custody, divorce or child support proceedings. This change will ensure that children of immigrant domestic violence victims will benefit from reforms in the laws (like presumptions against awarding custody or unsupervised visitation to batterers) in the same manner as all other children.”