Family law, immigration law collide
Life in the Shadows is one in a series of occasional articles.
On Friday nights, Michael Campo throws his clothes and homework into his backpack and waits at his mom’s Long Beach apartment for the phone to ring. When it does, 10-year-old Michael runs downstairs and jumps into his dad’s car.
Thus begins the weekly ritual familiar to millions of American children in split families who bounce back and forth between mother and father.
But Michael’s situation has an added wrinkle that threatens to derail the custody agreement and his weekends with Dad: Carlos Alvarado is an illegal immigrant involved in deportation proceedings.
Alvarado’s case raises complex questions that will increasingly face both state and federal judges: What happens when immigration law and family law conflict? When a parent is here illegally, does a federal deportation order automatically trump a state custody order? Should child custody issues be considered in immigration cases?
A Los Angeles immigration judge ruled that Alvarado could stay in the country, determining that he wouldn’t be able to continue his family court-ordered visitation and child support payments if deported.
Because Alvarado shares custody of his U.S.-citizen son with the boy’s mother, the judge wrote, he doesn’t have the option of taking the child home to Mexico.
A higher court overruled that decision and sent the case back to the judge. Alvarado is scheduled to return to immigration court this summer.
“I could lose everything, and above all, the right to be with my son,” said Alvarado, 36, who lives in Lakewood.
The Executive Office of Immigration Review, which oversees immigration courts nationwide, said it does not track cases involving split families.
Alvarado’s attorney, Alan Diamante, said there are no published court decisions for immigration judges to follow when immigration and family law intersect.
“They definitely need to give guidance on these cases,” he said.
Former Los Angeles immigration judge Bruce J. Einhorn said the state family court and the federal immigration court are completely different systems, run by two different governments.
“What you really have is an occasional train wreck waiting to happen,” he said. “You have two systems speeding along and, when they meet, it’s usually a head-on collision.”
A custody fight
Carlos Alvarado sneaked across the Mexican border in 1991. He and Marla Campo met about five years later and she gave birth to Michael in October 1997. After a few years, the couple separated.
In family court, the judge gave Campo custody of Michael. Under the order, the boy would visit his father one evening during the week and two weekends each month.
In 2003, Campo disappeared with Michael. Alvarado called police, who tracked her down. She said she was angry at Alvarado for not helping her financially.
“It got ugly,” said Campo, a nurse’s assistant and legal permanent resident from Belize.
The couple returned to court and the judge modified the order to give the parents joint legal custody. Though the custody order designated two weekends a month for Alvarado, Michael spends every weekend with his father.
The judge also set a child support payment of $276 a month. Alvarado, who has a work permit and has been with the same plastering company for 13 years, also pays for Michael’s health insurance.
Alvarado landed in immigration court after violating probation on prior convictions of driving under the influence and driving on a suspended license. County jail officials referred him to immigration authorities.
Alvarado’s trial in immigration court took place in June 2005. Judge Christine E. Stancill ruled that he could stay in the U.S., saying that if Alvarado were deported, communication and visits with Michael would appear to be an “impossibility.”
Stancill noted that in other cases, an undocumented parent may take the entire family home to his native country if deported.
“The compelling difference in this case is that the family would not be returning intact to Mexico but rather the respondent’s relationship with his 7-year-old son would be permanently severed,” she wrote in the decision.
She added: “The emphasis on the emotional well-being of the child is well founded in our child custody laws, and to go even further would be contrary to the spirit of our immigration laws.”
The government attorney appealed the case, saying in court papers that “this separation is no different than if [Alvarado] relocated to another state in the U.S.”
In February 2007, the Board of Immigration Appeals issued its decision overturning the ruling.
The board determined that the effect of Alvarado’s visitation with Michael was not enough to meet the required standard for him to stay in the country. The board noted that Alvarado said he would live in the border town of Mexicali if deported, which “would not require a lengthy journey for the respondent’s children to visit him.”
But it would rely on the willingness of Michael’s mother to allow her young son to travel south of the border.
Campo, 32, also has three children from another relationship. She and Alvarado now get along and communicate regularly about their son. Campo said she doesn’t want Alvarado to be deported, and she doesn’t want her son leaving the country.
“I’ve heard a lot of things about Mexico,” she said. “I just don’t feel safe sending him there.”
Alvarado has two other U.S.-born sons -- ages 2 and 4 -- with his current girlfriend, an illegal immigrant from Brazil. If Alvarado is deported, his girlfriend said, she and the two boys would go with him to Mexico.
Alvarado said he feels caught between two conflicting courts. If he is deported, he said, he won’t be able to afford the child support payment and will be in violation of a state court order. But if he is ordered deported and stays, then he will be in violation of a federal court order.
“One way or another, it’s a risk for me,” he said.
Los Angeles County Superior Court Judge Robert Schnider, who has been presiding over family law cases for nearly three decades, couldn’t comment about Alvarado’s situation but said deportation cases shouldn’t be treated differently from traditional cases in which a parent moves away.
A parent could ask a judge to order cross-border visitation. A judge could also alter a child support order after a deportation. If the parent already had been deported, he probably would need to send a family law attorney in his place to court proceedings, Schnider said.
“Just because somebody is forcing you to move away, it still ends up the same for the child,” he said. “There is really no reason why a child shouldn’t be able to visit their parent wherever they live.”
Making the visitation work, however, could be expensive and complicated, Schnider said. And a judge would consider any potential concerns about whether the deported parent would return the child after a visit.
Schnider said parents fighting for custody of their children often try to make immigration status a factor, but he takes it into account only if it “reflects on the risk of flight from the country with the child.”
Einhorn, the retired immigration judge, said there is no formal mechanism for state and federal court judges to communicate about cases or possible outcomes. An immigration judge has no authority to alter a custody order, he said, but an immigration case may have a profound effect on a parent’s custodial status.
“This has been a challenge to the courts for as long as I remember,” he said. “One court doesn’t know necessarily what the other court is doing, like the left hand doesn’t know what the right is doing. It’s one of those challenges that we have yet to meet.”
Pasadena attorney Colin Greene, who practices both immigration and family law, said he thinks the number of cases such as Alvarado’s probably will increase with stepped-up immigration enforcement.
“You deport more people, you are going to have more people with family law court problems,” he said. “You are going to see a lot more international custody and visitation orders. It is going to be an issue that judges are going to have to deal with more and more.”