Immigrant Family Law Rights

By Shahzad R. Khan, Esq.

People come to America seeking new opportunities, new ways of life, and seeking new forms of freedoms. They come with a certain understanding of America. But, they do not understand everything. They come with certain misconceptions that they heard from family members or friends who had previously made the journey. But the most common thing about all immigrants is that they come to America, or to any other new country, with a fear of the unknown.

When the pilgrims left for the new world, they feared what lied ahead. The immigrants who passed through Ellis Island had those same fears. And immigrants arriving today through JFK, O’Hare, LAX or any of the hundreds of ports of entry share many of the same fears as the first immigrants of this country did.

I know these fears, because both my parents were immigrants. I also know these fears because my wife is an immigrant. There is a real fear of the unknown. There is a fear about asking questions. There is a fear about taking action. And there is a great fear that if I do take action, there will be a penalty. Sometimes people from all sorts of cultural communities remain silent about an injustice because of the fear of retribution and the fear that if I ask questions or raise questions that scrutiny will be focused on me and that somehow my immigration status will be jeopardized.

Whether you are a green card holder, a person with asylum status, a person with refugee status or no status at all you do still have rights. You have human rights and rights under the laws of this country and its 50 states.

In family law, the area that I practice in, you have the following legal rights regardless of your immigration status:

Obtaining a Divorce: A divorce is the process by which two people terminate a marriage. Whether you were married in India, Pakistan, Bangladesh or any other country in the world you can petition the court for a divorce in the State of Illinois or any of the other states where appropriate. Remember a person’s immigration status is usually irrelevant when seeking a divorce. There are technical issues that need to be considered before you file for divorce such as residency requirements for the individual state, issues pertaining to whether your current immigration status may be affected by divorce, and grounds necessary to dissolve the marriage. It is important that you consult an attorney before you make a decision to proceed in this direction.

Obtaining an Order of Protection: An Order of Protection is a court order that protects a person who has been abused physically, emotionally, or sexually by a family member, a former or current spouse or significant other or a member of the household. Orders of Protection are not only obtained for adults, but also for the protection of children. Again, no matter what your immigration status may be, there is no restriction in obtaining an order of protection for protection against domestic violence.

Paternity and Child Support: You have the right to determine whether you are the father of a minor child born out of wedlock. The process of determining fatherhood is done through the use of DNA testing of the mother, the alleged father and the child. If paternity is determined, meaning the alleged male is determined to be the father of the minor child, then the custodial parent of that child has the right to seek child support from the non-custodial parent. The non-custodial parent has the right to seek visitation, custody (joint or sole custody) to meet the best interests of the minor child. Again, no matter what your immigration status may be, there is no restriction on filing a petition to determine parentage and to establish parental rights.

Besides the rights stated above, there a numerous other rights that immigrants possess in not only family law but in other areas of law. The key here is to ask questions and not be afraid to ask for help. It is not what you know that can hurt you, but what you do not know. Therefore, study the legal system and educate yourself so you do not end up a target looking for an arrow. Should you need help in any family law matter or you just have some general questions, please contact Attorney Shahzad R. Khan at the Law Offices of Jeffery M. Leving, Ltd., to discuss your rights.

Leonard Pitts’ Column Unfair to Black Fathers, Ignores Reasons for Father Absence

By Jeffery M. Leving & Glenn Sacks


Leonard Pitts Jr.’s recent column “Runaway dads are society’s dregs” excoriates “selfish” African American fathers who “abandon their children [and] harden themselves against their cries of need.” Pitts cites Larry Patterson, Jr., a 19-year-old black father who, after police tried to pull him over, allegedly sped away, smashed his car, and escaped, leaving his infant daughter in the backseat. Patterson is “unique only in degree,” Pitts writes–for black men today, it’s “Every man for himself.”

Pitts’ generalization is unfair. He is correct that some African-American fathers have behaved irresponsibly. However, he fails to see that many black fathers have been driven away by shortsighted, angry mothers and a family law system which does little to protect fathers’ loving bonds with their children.

When citing the reasons for father absence, Pitts mentions “divorce” only in passing. Yet divorce and the breakups of unmarried couples are major causes of African-American fatherlessness.

Despite the stereotype of the feckless and irresponsible male, research shows that the vast majority of divorces are initiated by women, not by men. Even for unmarried couples, it’s doubtful that many dads wake up in the morning and say to themselves, “My child loves me and needs me, my girlfriend loves me and needs me—I’m outta here.” Yes, some mothers have good reasons for these breakups. Yet, as Jonetta Rose Barras, the African-American author of Whatever Happened to Daddy’s Little Girl, explains, many black fathers are simply being “kicked to the curb.”

When a divorced or separated mother does not want her children’s father around anymore, she can usually push him out, particularly if the father does not earn enough money to pay for legal representation. Courts tilt heavily towards mothers in awarding custody, and enforce fathers’ visitation rights indifferently. In most states, mothers are free to move their children hundreds or thousands of miles away from their fathers, often permanently destroying the fathers’ bonds with their children.

The system which allows women to easily obtain domestic violence restraining/protection orders was set up to help battered women. However, many mothers instead employ them to get rid of inconvenient husbands or boyfriends. The Family Law Executive Committee of the California State Bar and family law professionals in various states have recently noted that these orders are often issued with little or no evidence or due process. Once in force, a father can be arrested and jailed for violating the order if he visits or even calls his kids. The orders begin as temporary, but are sometimes extended for years at a time.

With divorce or separation comes child support. The Urban League’s 2006 report on the state of black America concluded that the child support system and its abuses often drive African-American men out of their children’s lives, and either underground or into crime.

Half of uneducated African American men ages 25-34 are non-custodial fathers. Many of them are still a part of their children’s lives. Yet the child support they struggle to pay usually does not go to their children, but instead goes to the state to reimburse the cost of public assistance, including welfare, for the mother and children.

Some fathers even live with their children and their children’s mothers, yet their wages are still garnisheed to pay child support to the state, greatly contributing to the breakdown of these fragile families. Democratic Party presidential candidate Hillary Clinton recently acknowledged this problem in her Youth Opportunity Agenda.

The benefits that involved black fathers—even divorced or separated ones—can provide their children are substantial. For example, a recent study of low-income African-American and Hispanic families by Boston College found that when nonresident fathers are involved in their adolescent children’s lives, the incidence of substance abuse, violence, crime, and truancy decreases markedly. The study’s lead author, professor Rebekah Levine Coley, says the study found involved nonresident fathers to be “an important protective factor for adolescents.”

There are many reasons why some black fathers aren’t there for their kids. Sadly, there’s nothing we can do to make the Larry Pattersons of the world into good fathers. But there’s a lot we can do to help keep many decent, loving African-American dads in their children’s lives.

Jeffery M. Leving is one of America’s most prominent family law attorneys. He is the author of the new HarperCollins book Divorce Wars: A Field Guide to the Winning Tactics, Preemptive Strikes, and Top Maneuvers When Divorce Gets Ugly. His website is www.dadsrights.com.