Virginia Lawyer

VaLawyer_Feb2012

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The Intersection of Family Law and Immigration: Virginia and the Big Picture by Lynne Marie Kohm Family law stabilizes and strengthens marriage, reorders broken families, and protects the best interests of children. Family law is a creature of state government, governed by state statute. By contrast, immigration law and policy is federal law and when it intersects with family law, confusion and error can result. Lynne Marie Kohm is the John Brown McCarty Professor of Family Law at Regent University School of Law in Virginia Beach and serves as the Law School Liaison to the Board of Governors for the Family Law Section of the Virginia State Bar. Federal law has intervened in family law through various legislative actions such as the Defense of Marriage Act, Temporary Assistance for Needy Families, and the Uniform Interstate Family Support Act, all of which pave new avenues for federal and state cooperation. Federal constitutional intervention also has influenced family law through the Meyer-Pierce doctrine of parental rights, the Griswold-Eisenstadt-Lawrence doctrine of sexual privacy, and the Roe-Casey doctrine of abortion.1 Sometimes federal inter- vention in the family regarding children can even be violent, such as when the U.S. Department of Justice removed seven-year-old Elian Gonzales by gunpoint from his guardians' home in Miami despite previous court orders.2 In another instance, a recent executive order did not deport otherwise non-criminal illegal aliens in order to keep international same-sex couples who cannot marry from deportation.3 Recognizing that immigration functions as family policy is the starting point for lawyers who may find themselves addressing challenges for families in immigration cases. Legal immigration reflects national values through the promotion of reunification of fami- lies and the admission of skilled educated foreign- ers to enrich the national community.4 This article will not only focus on immigration law, but will discuss concerns that family law lawyers encounter working with immigrant clients. In a statutory context, immigration jurispru- dence applied as functional family law is more regulatory than state family law. It defines chil- dren in several different ways, has unique rules for 34 VIRGINIA LAWYER | February 2012 | Vol. 60 | FAMILY LAW SECTION parentage, and regulates fiancés and fiancées.5 These edicts complicate legal immigration, and could contribute to illegal immigration. Add to these regulations what some see as a lack of fed- eral enforcement of current immigration law, and we find states stepping in.6 Scholars suggest that objectives for immigra- tion and family law could be driven by principles focused on a desire to "least intrude on state fam- ily law's policy objectives while still fulfilling the goals of federal immigration policy."7 This would allow for minimal damage to state law under- standings of marriage in judicial interpretation of immigration regulations. Such an attitude may also be the best way to prevent immigration from regulating the family unintentionally or from weakening the nation that can be strengthened by immigration. An example includes children left behind after illegal parents are deported. States are trying to discern if this accomplishes the best interests of the child. Fiancé(e) over-regulation is evident, as the parties must have met within the previous two years. Immigration laws provide for a U visa to allow the immigration of victims of domestic vio- lence, but family courts remain the local prosecu- tors of domestic violence cases. When it comes to marriage, America's national policy of deferring to another nation's laws reflects a desire to accom- modate multiculturalism, but that can be prob- lematic (and even dangerous for women and children) when only one gender can petition for certain rights8 or be protected from prosecution of criminal behavior.9 www.vsb.org

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