Sunday, May 01, 2005

Legal custody can be defined by actual uncontested custody

In Bagot v. Ashcroft, No. 04-2127 (3d. Cir. Feb. 11, 2005), the Third Circuit focused on definintg legal custody in order to decide whether someone was a United States citizen through his parents' citizenship.

The immigration law allowed him (born outside the US to parents who were not US citizens) to become a citizen if one of his parents who has legal custody of him after a legal separation becomes a citizen (along with other requirements such as his admission to the US as a legal permanent resident and still being a minor at the time).

The entire case depended on whether he was in his father's legal custody at the time his father became a US citizen. The Third Circuit laid out a structure for deciding this issue -- the first test is whether the state law where a decree was made would define the parent has having legal custody. The second test is whether the parent had actual uncontested custody. Here, the father had actual uncontested custody because the mother agreed to give custody to the father because of the difficulties she was having raising the kids outside the US.


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