Friday, 14 November 2014

U.S. Supreme Court Refuses to Hear Case of Disputed Guatemalan Adoption

In 2012, Encarnacion Bail Romero lost custody of her five-year old child. Romero had been arrested and detained for working illegally in the country.

The St. Louis Post-Dispatch reports that the case garnered international attention, making many question America’s immigration policies, and drawing outrage from a Guatemalan diplomat.

David Jones, the judge who ruled on the case, found that Romero had abandoned her child, therefore terminating her parental rights, making it legal for Seth and Melinda Moser of Carthage, Missouri, to adopt the child formally. The couple have been raising the boy since his infancy.

Romero was allowed to remain in the country to await the outcome of the custody battle.

Immigration rights groups were disturbed by the outcome of the case, citing gaps in the child welfare system and the immigration detention process. These two processes made it impossible for Romero to have a say in who would have custody of her child while she was being detained for her violation of immigration law. Furthermore, Romero claimed that her inability to speak English limited her ability to have a say in the custody of her child. She explains that she did not fully understand her rights, nor did she understand the import of the legal proceedings taking place.

To make matters more complicated, Romero served time in jail for a law that was later deemed unconstitutional by the Supreme Court.

Guatemalan ambassador, Francisco Villagran de Leon admonished the U.S. for the proceedings, stating that no child should be taken away and given up for adoption just because the parents were present in the country illegally.

Romero had been arrested in 2007, when the government raided a poultry plant where she had been working. While Romeo was detained, her child, an infant, was passed among family members before finally being adopted by the Mosers. In appellate court, the adoption was overturned. Yet, during the Missouri Supreme Court hearing, the Mosers argued that removing the child from the only home he had known for the past five years would not be in his best interests.

Missouri child custody law is designed to protect the best interests of the child in all cases. Judges will consider several factors in determining what is in the child’s best interests. The age of the children, the parent’s wishes, the relationship of the child to the parents, the ability and willingness of the parent to support the child, how much care the parent has provided the child up to this point in the child’s life, the ability of the parent to provide a stable and loving home, are all factors the court will consider when determining child custody. On some of these counts, it seems easy for the court to rule in favor of the Mosers, who had cared for the boy from an early age.

The Mosers argued that it would be traumatic for the child to be removed from the only home he had known in order to be deported to a foreign country. Furthermore, the boy only knew English.

The Missouri Supreme Court determined that while Romero’s parental rights were unfairly infringed, the court had to rule in favor of the best interests of the child.

The Woman’s Refugee Commission wrote an Op-Ed in 2012 stating that this case is a sober reminder about the threats U.S. immigration law has to child custody and families. Current immigration law does not allow parents to make arrangements for what happens to their children should they be arrested for being present illegally in the country. Furthermore, gaps in immigration law and in the child welfare systems do not protect immigrant parents’ rights. To make matters worse, immigration judges do not have any legal recourse to consider the humanitarian effects that deportation will have on the children left behind. Other countries, among them Canada, take into consideration the best interests of the child and consider humanitarian issues regarding the children, when deportation proceedings are in order.

Romero took the case to the Supreme Court. Yet, the court refused to hear the case, finalizing the Moser’s adoption, meaning that Romero now has no further recourse to regain the custody of her son.

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