Introduction: Custody Rights Are Not Tied to Citizenship
In Florida, family courts are governed by one paramount principle: the best interests of the child. When parents divorce, their citizenship status—whether they are U.S. citizens, lawful permanent residents, or undocumented immigrants—is not the primary consideration in determining custody and timesharing. Contrary to some misconceptions, being a non-citizen does not disqualify a parent from obtaining custody in a Florida divorce.
Still, while non-citizens have legal standing in Florida custody cases, they often face unique challenges—both legal and practical—when trying to establish or maintain custody. These include visa-related travel restrictions, fear of immigration enforcement, lack of familiarity with the legal system, and bias from the opposing party.
A Tampa divorce lawyer who understands the intersection between family law and immigration issues can help ensure that a non-citizen parent’s rights are fully protected throughout the custody process. This article explores how Florida custody laws apply to non-citizen parents, what obstacles they may face, and how the courts evaluate their parental fitness.
Florida Custody Law Overview: Best Interests of the Child
Florida Statutes § 61.13 governs child custody, legally referred to as “parental responsibility and timesharing.” Courts are required to develop a parenting plan that serves the child’s best interests, based on a long list of statutory factors that include:
- The child’s relationship with each parent
- Each parent’s ability to meet the child’s needs
- The moral fitness of the parents
- The mental and physical health of each parent
- The stability of the home environment
- The geographic viability of the parenting plan
- Each parent’s willingness to foster a relationship with the other parent
Notably absent from the list: citizenship or immigration status.
Florida law does not deny parental rights based on whether the parent is a U.S. citizen. A non-citizen parent—whether a green card holder, student visa holder, or undocumented immigrant—has the same right to seek custody or visitation as any other parent.
A Tampa divorce lawyer can file motions, negotiate parenting plans, and present evidence in court to protect a non-citizen’s custodial interests in accordance with state law.
Myth vs. Reality: Non-Citizen Parents and Custody Myths
Many non-citizen parents are told, incorrectly, that they cannot get custody of their child if they are undocumented, face deportation, or do not speak fluent English. These myths persist because of:
- Misinformation from non-lawyers or community members
- Fear of immigration consequences
- Threats made by the opposing parent
- Complexities in navigating both family and immigration court systems
In reality, Florida courts are focused on parenting—not passports. Citizenship is not a legal requirement for custody, and the U.S. Supreme Court has repeatedly held that non-citizens have due process and equal protection rights under the Constitution, including in family law matters.
A Tampa divorce lawyer will know how to combat these misconceptions and present a strong case for custody on the merits.
What the Courts Actually Consider When One Parent Is a Non-Citizen
While citizenship itself is not a disqualifier, courts will consider practical implications of a parent’s immigration status—just as they would consider any other factor that could affect the child’s stability or well-being.
Relevant considerations may include:
- Whether the non-citizen parent is at risk of deportation
- The parent’s ability to provide a stable residence in the U.S.
- Work authorization and financial stability
- Past criminal convictions, if any
- Whether the parent can comply with the parenting plan (e.g., travel, visitation)
- The likelihood that the child will be removed from the U.S. without consent
These concerns are not about legal status—they are about the parent’s ability to care for the child on a consistent basis.
A Tampa divorce lawyer will anticipate and address these concerns through proper evidence, immigration documentation, and detailed parenting plan provisions.
Scenario 1: Lawfully Present Non-Citizen Parent
Parents who are in the U.S. legally—such as those with green cards, work visas, student visas, or pending immigration petitions—typically have fewer hurdles in custody cases. So long as they can demonstrate:
- Residency in Florida
- Stable income or support
- A strong relationship with the child
they are treated the same as U.S. citizens. Courts may inquire about the temporary nature of a visa, especially in relocation cases, but lawful presence is not a negative factor in and of itself.
A Tampa divorce lawyer will prepare evidence showing the parent’s legal status, ties to the community, and ability to maintain long-term residence in Florida.
Scenario 2: Undocumented Parent Living in Florida
Undocumented parents have full standing in Florida courts and cannot be denied custody solely because of their immigration status. However, courts may consider:
- Whether ICE has issued a removal order
- Risk of sudden detention or deportation
- Housing instability or job insecurity
- Lack of driver’s license or inability to transport the child
These issues may weigh against awarding majority timesharing—but do not preclude joint parental responsibility or significant visitation.
A Tampa divorce lawyer representing an undocumented parent must be especially vigilant in demonstrating that the parent’s day-to-day life is stable and that they are actively involved in the child’s upbringing.
Scenario 3: Parent Facing or Subject to Deportation
Parents with pending deportation proceedings or who have already been deported face unique challenges. If the parent remains involved and wants to retain parental rights, courts may:
- Allow virtual visitation
- Assign temporary custody to the other parent or a relative
- Require special provisions in the parenting plan
- Reevaluate custody if deportation leads to long-term absence
Importantly, deportation alone does not terminate parental rights. Only a separate dependency or termination of parental rights (TPR) case can do that—and those require clear and convincing evidence of unfitness.
A Tampa divorce lawyer can petition for modifications, supervised time-sharing, or enforceable visitation arrangements even when a parent resides abroad.
International Custody Complications and the Hague Convention
If the non-citizen parent seeks to relocate abroad with the child—either voluntarily or due to deportation—international custody rules may apply. Florida courts cannot authorize relocation outside the U.S. without compliance with Florida’s Relocation Statute (Fla. Stat. § 61.13001), which requires:
- Notice to the other parent
- Court approval (if not agreed)
- A detailed long-distance parenting plan
If a child is taken outside the U.S. without consent or court approval, it may be treated as international child abduction, subject to the Hague Convention on the Civil Aspects of International Child Abduction.
A Tampa divorce lawyer can:
- File relocation petitions
- Draft international parenting plans
- Seek enforcement through foreign courts if the child is wrongfully removed
The key is proactive legal planning before travel or removal occurs.
Can a Non-Citizen Parent Get Full Custody?
Yes. A non-citizen parent can be awarded majority timesharing or even sole parental responsibility if the court finds it is in the child’s best interest. In many cases, the non-citizen parent is the more stable, nurturing, or available caregiver.
Factors that may support full custody include:
- A history of domestic violence or instability by the other parent
- More consistent involvement with the child’s education and health
- Superior living environment
- A deeper emotional bond with the child
Tampa courts are required to assess the totality of circumstances—not immigration documents. A Tampa divorce lawyer representing a non-citizen can present school records, witness statements, and expert evaluations to establish a strong custodial case.
Preventing Parental Alienation Based on Immigration Status
Unfortunately, some U.S. citizen parents try to alienate the child from the non-citizen parent by:
- Making negative comments about immigration status
- Threatening to call ICE or interfere with legal status
- Preventing contact due to fears of abduction
- Withholding passports or travel consent
Florida courts do not tolerate parental alienation and may reduce custody time or impose sanctions on parents who attempt to weaponize immigration against the other parent.
A Tampa divorce lawyer can seek court orders to:
- Enforce time-sharing
- Restrict disparaging remarks
- Compel passport releases or travel documentation
- Protect the parent’s communication rights
Family law is not a vehicle for immigration retaliation—and judges will act to protect the child’s emotional well-being.
Legal Tools to Strengthen a Non-Citizen Parent’s Custody Case
- Detailed Parenting Plans
The more specific the plan, the more enforceable it becomes. Address holidays, pick-ups, school communication, and virtual contact. - Virtual Visitation Clauses
Especially for non-citizen parents living abroad or with travel restrictions, Zoom or WhatsApp visits maintain parent-child bonds. - Designation of Temporary Guardians
If a parent faces removal, the court can approve a relative or co-parent as a temporary custodian without terminating rights. - Court-Ordered Mediation
Mediation allows parents to craft creative solutions that courts may not impose unilaterally. - Proof of Stability
Immigration documents, employment letters, lease agreements, and school enrollment support a non-citizen parent’s case for continuity. - Early Legal Representation
Non-citizen parents must retain a Tampa divorce lawyer early in the process to avoid waiver of rights or default judgments.
What If the Non-Citizen Parent Is Deported During the Case?
If a non-citizen parent is deported or voluntarily leaves the country during an ongoing custody case, Florida courts may:
- Proceed with the case using remote testimony
- Allow time-sharing by international visitation or digital platforms
- Require the parent to appear by video or submit affidavits
- Enter a final judgment based on the best available information
The deported parent can still:
- Retain a lawyer to represent their interests
- Appeal the final judgment if due process was denied
- File motions for modification if circumstances change
A Tampa divorce lawyer can petition for a continuation or alternative resolution methods to ensure the parent’s voice is heard.
When Should a Non-Citizen Parent File for Custody or Visitation?
Immediately. Delay can be used against a parent, especially if the other parent is already exercising majority care. Florida law favors active involvement and time-sharing.
Early filing helps:
- Prevent relocation without permission
- Secure temporary visitation rights
- Establish a legal record of involvement
- Avoid arguments that the parent has “abandoned” the child
Even if immigration proceedings are pending, non-citizen parents have the right to access the family courts. A Tampa divorce lawyer will prioritize urgency and compliance with both state and federal law.
Conclusion: Non-Citizen Parents Have Custody Rights in Florida
A parent’s ability to raise, love, and care for their child does not depend on a passport or visa. In Tampa, and throughout Florida, non-citizen parents have full legal rights to pursue custody and timesharing. While they may face additional hurdles, the law protects their right to be heard and to maintain meaningful involvement in their child’s life.
A skilled Tampa divorce lawyer can help non-citizen parents:
- Navigate both family and immigration law concerns
- File for custody, timesharing, or relocation
- Defend against unfair claims based on immigration status
- Build evidence showing stability, fitness, and involvement
- Enforce parenting time even across borders
Florida courts focus on one thing: the child’s best interest. And if the non-citizen parent is best equipped to meet that interest, they are entitled to custody—just like any other parent.
FAQ: Non-Citizen Parents and Custody in Florida
Can I get custody if I’m not a U.S. citizen?
Yes. Florida law does not require citizenship to obtain custody or visitation.
What if I’m undocumented—do I still have parental rights?
Yes. Your legal status does not eliminate your parental rights. You may face additional hurdles, but you still have standing in court.
Will the court take my child if I’m deported?
Not automatically. You may be allowed to arrange for temporary custody or international visitation. You do not lose rights unless a separate TPR case is filed.
Can my U.S. citizen spouse use immigration against me?
Courts do not tolerate parental alienation based on immigration. Threats or manipulation may backfire in custody rulings.
Do I need a lawyer even if I’m not in the U.S.?
Yes. A Tampa divorce lawyer can represent you, appear in hearings, and protect your rights—even if you reside abroad.
Can I take my child to my home country?
Only with permission from the court or the other parent. Unauthorized removal can be treated as child abduction under international law.
Does the court care about my immigration status when deciding custody?
Only to the extent that it affects your ability to care for the child. Legal status alone does not disqualify you.
How can I prove I’m a good parent if I’m undocumented?
Provide evidence of housing, employment, school involvement, and a stable relationship with the child.
Can I get full custody if I’m a non-citizen?
Yes. If the court finds it’s in the child’s best interest, you may be awarded majority or even sole custody.
What’s the first step I should take?
Contact a Tampa divorce lawyer immediately to assess your case, gather documentation, and file the appropriate custody pleadings.
The McKinney Law Group: Strategic Legal Counsel for Divorce in Tampa
At The McKinney Law Group, we combine legal experience with personalized support to help Tampa clients move through divorce with confidence. Whether contested or amicable, your case deserves a strategy that protects your future.
We offer representation for:
✔ Filing and responding to divorce petitions
✔ Time-sharing plans that support effective co-parenting
✔ Fair distribution of real estate, retirement, and other assets
✔ Spousal and child support negotiations grounded in law
✔ Post-divorce legal needs, including enforcement and changes
Call 813-428-3400 or email [email protected] to learn more.