Many thanks to Lucia Martinez and Rebecca Plasencia, her pro bono counsel, for sharing their story. Thanks also to the participants of the 2011 Emerging Immigration Scholars and Teachers Conference and the 2011 Northeast People of Color and Conference of Asian American Law Faculty Workshop for their helpful feedback during the early stages of this article. I would also like to thank Professors Melissa Breger, Leigh Goodmark, Keith Hirokawa, Deborah Kearns, Theo Liebmann, Kathryn Loncarich, Mary Lynch, and Christian Sundquist for their thoughtful consideration and careful review of earlier drafts. James DelBelso and Jeffrey Murphy provided valuable research assistance.
Special Issue Articles
Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children
Article first published online: 26 OCT 2012
© 2012 Association of Family and Conciliation Courts
Family Court Review
Volume 50, Issue 4, pages 580–593, October 2012
How to Cite
Rogerson, S. (2012), Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children. Family Court Review, 50: 580–593. doi: 10.1111/j.1744-1617.2012.01477.x
- Issue published online: 26 OCT 2012
- Article first published online: 26 OCT 2012
- Family Unity;
Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.
- Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
- Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
- Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence