The purpose of this article is not to suggest that the Fifth Circuit was wrong in upholding the dismissal of Monica’s case. Indeed, the court was faced with a dilemma that would give King Solomon pause: what to do when two parents claim one child. This article’s purpose is to show that a regulatory solution is preferable to forcing the courts to make impossible choices between parents. Part II discusses the factual and procedural history of Castro. Part III details the policies and rules of law of immigration and custody at play in the case. Part IV explains why the courts are not equipped to decide this issue satisfactorily, and why a regulatory solution is needed. Part IV also discusses the proposed regulation prohibiting the de facto deportation of a non-deportable child with a deportable parent, with a stay of ninety days from the date of a final decision to deport, unless the deportable parent obtains a custody order. In those ninety days, the deportable parent should seek a custody order. If there is no custody order at the end of the grace period, the child will remain with the non-deportable parent. Part V reiterates the need for a solution and concludes that the proposed regulation is the best fit.
Yahner, Timothy E.
"Splitting the Baby: Immigration, Family Law, and the Problem of the Single Deportable Parent,"
Akron Law Review: Vol. 45:
3, Article 7.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol45/iss3/7