Citizenship Series Part 5: Deriving Citizenship when Your Parents were Legally Separated
Naturalization of Parent Having Legal Custody Where There Has Been a Legal Separation of the Parents:
The USCIS phrase may sound complex, but this path to Derived Citizenship applies to children whose parents were divorced or legally separated. The key factor is “Legal Custody.” In this post, we’ll break down what counts as Legal Custody and how it affects your eligibility.
- Custody by Court Order is the most straightforward case is when a U.S. Citizen parent was granted sole custody in a divorce decree or court order. If you also meet the requirements outlined in Part 3 of this series, you derived citizenship on the day custody was awarded.
- If custody was based on a private agreement rather than a court order, USCIS may accept it only if state law recognizes such agreements. Even without a formal custody order, your actual living arrangement can be used to show Legal Custody.
- If custody wasn’t specified in the divorce but you lived exclusively with your U.S. Citizen parent, this can serve as evidence of custody. USCIS accepts proof of your living situation to establish that your parent had Legal Custody.
- A *nunc pro tunc (“now for then”) order can retroactively establish custody. However, USCIS does not accept these orders if they were issued after your 18th birthday.
- Joint custody usually satisfies the Legal Custody requirement. But in the Fifth Circuit (Texas, Louisiana, Mississippi) and Ninth Circuit (California, Arizona, Nevada, Oregon, Washington, Idaho, Montana), sole custody by the U.S. Citizen parent is required.
*You may have heard the term nunc pro tunc in relation to asylum cases, if that is what your looking for, click HERE.
If you believe you meet these criteria and wish to file an N-600 (Application for Certificate of Citizenship), or if you simply have questions about naturalization, call U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation.
