Update #1 ·

Separation, Deportation, Termination in Boston College Journal of Law & Social Justice, Volume 32 • Issue 1 • Article 4

by Marcia Yablon-Zug University of South Carolina School of Law, [email protected]

Abstract: There is a growing practice of separating immigrant children from their deportable parents. Parental fitness is no longer the standard with regard to undocumented immigrant parents. Increasingly, fit undocumented parents must convince courts and welfare agencies that continuing or resuming parental custody is in their child’s best interest. This requirement is unique to immigrant parents and can have a disastrous impact on their ability to retain custody of their children. Best interest decisions are highly subjective and courts and agencies increasingly base their custody determinations on subjective criteria such as negative perceptions regarding undocumented immigrants and their countries of origin, and on extremely positive beliefs regarding the benefits of an American upbringing. For undocumented parents facing deportation, this is a disastrous combination. Courts and agencies frequently conclude that allowing a child to leave with a deported parent, return to a foreign country, and forgo childhood in the United States is not in the child’s best interest. Replacing the parental rights standard with a best interest of the child standard in the context of undocumented immigrant families is the latest example of the increasing power of the children’s rights movement. This, however, is a drastic change and one that must receive considerable attention and consideration before it is permitted to continue.

Conclusion The decades-long struggle between children’s and parents’ rights is continuing. The ascendancy of children’s rights has had far reaching effects and the termination of undocumented immigrant parents’ rights is one of the most recent but least noticed. Best interest considerations may justify these terminations. Permitting such considerations to support the termination of fit parents’ rights, however, represents a substantial law and policy change. This change must be recognized and its implications considered before it is permitted to continue.


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