When parents separate or divorce, one of the most stressful concerns is who will have custody – or conservatorship – of the children. For immigrant parents in Texas – whether lawful permanent residents, visa holders, or undocumented – the added question of whether citizenship or immigration status will affect parental rights is an even greater concern.
The short answer is this: Texas courts do not base custody decisions on citizenship. Instead, the guiding principle in every case is the best interest of the child, as required by Texas law.
That said, immigration issues can sometimes indirectly affect custody disputes, especially in a state like Texas with strong international connections and significant border activity. Understanding how Texas law applies to these cases is essential for protecting your rights as a parent.
The Texas Standard: Best Interests of the Child
All Texas custody cases, legally referred to as cases about conservatorship and possession, are governed by Texas Family Code §153.002. The statute states:
“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
This means that when a Texas court makes decisions about custody, visitation, or parental rights, the focus is not on the parent’s immigration status but on what arrangement will serve the child’s welfare, safety, and stability.
Factors the court may consider when evaluating the child’s best interests include:
- The child’s physical and emotional needs now and in the future
- Each parent’s ability to provide a safe and stable home environment
- Each parent’s ability to provide care and supervision
- The child’s relationship with each parent
- Any history of abuse, neglect, or endangerment
Nowhere in the statute is citizenship listed as a factor.
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Do Non-Citizens Have Parental Rights in Texas?
Yes. Texas courts recognize that parental rights are constitutional rights held by all parents, regardless of citizenship. This principle has been supported by both federal and state case law: parents – even undocumented parents – cannot lose custody or visitation simply because of their immigration status.
This means that even undocumented parents maintain the right to:
- Seek custody (conservatorship) of their children
- Request visitation (possession) of their children
- Participate in decisions about their children’s upbringing
How Immigration Status May Still Affect Custody Cases
While immigration status itself is not a disqualifier, immigration issues can sometimes have an indirect impact on custody disputes in Texas.
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Deportation or Detention
If a parent faces deportation or immigration detention, the court may consider how this instability affects the child’s continuity of care. For example, if one parent risks being removed from the country, a judge may temporarily grant custody to the other parent to preserve the child’s stability.
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International Relocation
Relocation cases are common in Texas, especially for families with ties to Mexico and other countries. Courts carefully consider whether a move abroad is in the child’s best interest. Judges may impose conditions such as:
- Requiring notice before international travel
- Ordering supervised visitation during travel
- Holding passports in escrow to prevent abduction risks
Stability and Resources
If immigration issues create challenges with housing, employment, or healthcare, judges may weigh those factors when evaluating the child’s best interests. However, these concerns must be tied to actual stability, not just the parent’s status.
Fear of Using the Courts
Many undocumented parents hesitate to appear in Texas courts for fear of immigration enforcement. Unfortunately, avoiding the legal process can hurt a parent’s custody case. Working with an experienced Laredo, Texas family law attorney can help protect your rights while limiting your risks.
Mixed-Status Families in Texas
Texas has a large number of mixed-status families, where one parent is a U.S. citizen and the other is not. Courts cannot favor the citizen parent solely because of their citizenship. Instead, they must evaluate each parent’s caregiving abilities.
For example, if a citizen parent has a history of substance abuse or domestic violence, the non-citizen parent may be awarded custody. However, if the non-citizen parent faces imminent deportation, the court may place greater emphasis on the citizen parent’s stability.
The analysis always comes back to what is in the child’s best interests.
International Custody Disputes and the Hague Convention
Some Texas custody disputes extend beyond the U.S. border. In these cases, the Hague Convention on the Civil Aspects of International Child Abduction may apply. This treaty, to which both the U.S. and Mexico are parties, provides a legal framework for returning children who are wrongfully taken across international borders.
For immigrant parents in Texas, this means:
- A parent cannot simply take a child out of the country without permission or court approval.
- If a child is wrongfully taken abroad, the other parent can petition for their return under international law.
Immigration status does not override these treaty protections.
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