As family law practitioners, you may encounter a situation like this: an unmarried couple who happen to be illegal aliens have a child in common, who was born in the United States. The couple recently separated and the custodial parent fears that the other parent may take the child and flee to their country of citizenship.
Usually, the custodial parent will not seek help due to fear of being deported. I thought that this would be an interesting topic to explore further. My findings are listed below.
After some research I realized that the key question pertains to an illegal alien’s right to access the civil, criminal, and family court systems. I quickly disposed of any ideas suggesting separate treatment in family law situations for illegal aliens.
In fact, an illegal alien’s right to access all levels of the court system is ironically, an inalienable right. 42 U.S.C. § 1981 (2006).
All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, penalties, taxes, licenses, and exactions of every kind and to no other.
42 U.S.C. § 1981(a) (2006).
The equal rights statute mentioned above undeniably extends to illegal aliens. Catalanatto v. Palazzolo, 259 N.Y.S.2d 473, 476 (1965). Consequently, the plain fact that a person is an illegal alien does not “put him beyond the protection of the law.” Id.
Federal courts have explicitly indicated that all aliens with standing in a matter may initiate or defend against lawsuits in American courts. Martinez v. Fox Valley Bus Lines, 17 F. Supp. 576, 578 (D. Ill. 1936). In addition, Massachusetts courts have held that the test for the right to sue in state courts lies in residency, not nationality. Janusis v. Long, 188 N.E. 228 (Mass. 1933).
More recently, an illegal alien’s equal access to the courts has morphed and extended into issues concerning the admissibility of the alien’s illegal status. To illustrate this point, in Gonzalez v. City of Franklin, a Wisconsin court granted the plaintiff’s motion in limine prohibiting the City of Franklin from introducing information relating to the plaintiff’s illegal-alien status. Gonzalez v. City of Franklin, 403 N.W.2d 747, 759 (Wis. 1987). The court determined that the prejudicial effect of admitting the plaintiff’s citizenship status outweighed the probative value of such information. Id. However, some courts disagree as to the relevancy and admissibility of such evidence when a claim for future loss wages is involved. Collins v. New York City Health and Hospitals Corp., 580 N.Y.S.2d 834, 836 (1992).
In conclusion, there is no doubt that an illegal alien is afforded the same unfettered access to our civil, criminal, and family courts regardless of whether he is an illegal alien or a naturalized citizen. Williams v. Williams, 328 D. Supp. 1380 (D.V.I. 1971).
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