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October 29th, 2012 by Robert Franklin, Esq.
United States Immigration authorities have granted a Mexican man additional time in which to try to regain custody of his children before being returned to his native country. Read about it here (Colorlines, 10/26/12).  Felipe Montes lived in North Carolina with his wife Maria and their three children, ages 1, 3 and 4.  He was here illegally, so, when he was stopped for a traffic violation, the U.S. Immigration and Customs Enforcement deported him to Mexico.

That was in 2010.  With Montes gone, the local Child Protective Services took the three children into foster care due to Maria’s problems with illicit drug use and mental problems.  The children have now been in foster care for two years and their foster families want to adopt them.

But Felipe didn’t give up on getting his kids back  With the help of the Mexican Consulate, he hired an attorney and ICE did something that’s (a) to its everlasting credit and (b) something I’ve never seen before.  It allowed Montes a 90-day humanitarian visa that would allow him to be present in court when the custody decisions about his kids were made.  Then ICE went one better; when the original 90 days proved insufficient to complete the decision-making about custody, it granted him still more time in this country.  Montes now has until December 23rd, and his attorney believes the case should be decided by November 19th or close to it.

We’re seeing this more and more.  When parents in this country are discovered and deported, the question arises – what about their kids?  Particularly if a foreign-born person has children with an American spouse who then proves to be an unfit parent, child welfare authorities routinely opt to place the kids in foster care and have them adopted rather than keep them with the deported parent.  So far we’ve seen this play out in Idaho and Michigan with different results in each state.

The Idaho Supreme Court sharply rebuked a lower court and the local child welfare authority for attempting to force adoption on a little boy who had a perfectly fit father in Mexico.  It rightly ruled that the father had not been shown to be unfit and thus had parental rights superior to those of anyone else.  The Michigan courts reached a different conclusion that I would argue is wrong both legally and morally.

In Montes’ case, I would argue that, because he’s the children’s natural father, his rights trump those of all comers save Maria’s if she ever proves herself to be a fit, loving mother.  There’s so far no evidence that Montes is an unfit parent and, I suspect, if he were, the State of North Carolina would have proved it by now.  What we know is that he’s a father who’s bent heaven and earth to try to keep his family together in the face of a powerful state agency that’s bent on tearing it apart.  Short of a showing of unfitness, Felipe Montes’ sons need to live with him; they need to reestablish relationships with their father and their grandparents, aunts, uncles, cousins, etc. in Mexico.

Supreme Court Precedent Requires Dad Have Custody of Kids

Roughly a century of Supreme Court precedent shows that states may not terminate or diminish the rights of a parent absent a showing of unfitness on that parent’s part.  Those rulings apply to aliens in this country -even illegally – as surely as they do to citizens.  The argument will be made – doubtless has already been made – that the best interests of the children demand that they remain in their foster homes.  Whether explicitly or implicitly, part of that argument is that the children would live more affluent lifestyles in this country than they would in Mexico.  After all, Montes likely came here because his circumstances there were poor.

But the argument that the well-to-do should have first claim on the children of the poor is a non-starter for what should be obvious reasons.  It’s true that the children have lived with their foster families for two years, but those children can adjust to their father’s care with no undue hardship.  Importantly, the county child welfare authority has seen fit to separate the boys from each other during that time.  That’s not a prescription for the best interests of the children, while being back together in the care of their father is.

Another fact militating in Montes’ favor is that these boys have a father who wants to care for them and likely is qualified to do so.  Good foster families are in short supply; there are far more children who need adopting out of foster care than there are foster parents to adopt them.  For a judge to terminate Montes’ rights and force adoption on his sons would be bad enough in its own right.  But doing so would simultaneously deny foster care and adoption to other children who desperately need parents.

The options and the consequences of each are clear enough.  Felipe Montes needs his children, and they need him.

Meanwhile, let’s give an unaccustomed shout-out to ICE that showed the intelligence and the humanity to allow a father the right to return to this country to fight in person the most important fight of his life.  I hope the agency’s action is a template for future cases.  We see these cases more and more, and attorneys for deported parents should never miss an opportunity to request the type of humanitarian visa that was granted to Montes.  Physical presence in the courtroom is indispensible, particularly for parents who otherwise would be trying to keep custody of their children in a foreign language and at a great distance.

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