You are here: / / ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION...
,

ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department determined mother’s custody petition should not have dismissed. Although mother was presumptively entitled to custody as the sole surviving parent, she was seeking findngs which would allow the children to apply for special immigrant juvenile status (SIJS):

SIJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship … . Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence … . “Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services [hereinafter USCIS] for SIJS” … . Ultimately, the determination of whether to grant SIJS to a particular juvenile rests with USCIS and its parent agency, the Department of Homeland Security. Thus, when making the requisite SIJS findings, the state or juvenile court is not actually “rendering an immigration determination” … . * * *

Here, although the mother was presumptively entitled to custody of the children as their surviving parent … , “[a] natural parent has standing to seek legal custody of his or her child” … , and “[u]nopposed petitions for custody brought by a natural parent have been granted” for SIJS purposes … .

Accordingly, the Family Court should not have dismissed the custody petition without conducting a hearing and considering the children’s best interests. Instead, the court should have proceeded to conduct a hearing on the petition, which sought a custody order as well as an order making the requisite declaration and special findings so as to enable the children to petition for SIJS … . Matter of Castellanos v Recarte, 2016 NY Slip Op 05755, 2nd Dept 8-10-16

 

FAMILY LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

You might also like
THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​
Family Court Should Have Granted Change-of-Custody Petition
THE RIGHT TO SEEK DISMISSAL OF THE FORECLOSURE ACTION PURSUANT TO CPLR 3215 (C) BASED ON PLAINTIFF BANK’S FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN A YEAR WAS WAIVED BY DEFENDANT’S THREE-YEAR DELAY IN BRINGING THE MOTION TO DISMISS (SECOND DEPT).
NEGLECT FINDING REVERSED, CRITERIA EXPLAINED.
MOTIONS FOR SEVERANCE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).
Hospital Generally Not Liable for Negligence of Private Attending Physician.
LAWSUITS ALLEGING STATUTES CONCERNING THE HIRING AND FIRING OF TEACHERS HAVE LED TO THE RETENTION OF INEFFECTIVE TEACHERS AND THE CONSEQUENT VIOLATION OF THE RIGHT TO A SOUND BASIC EDUCATION PROPERLY SURVIVED MOTIONS TO DISMISS (SECOND DEPT).
Supreme Court Should Not Have Determined the Mortgage Company Did Not Negotiate a Loan Modification in Good Faith Without a Hearing, and Could Not, Pursuant to the Contract Clause, Order the Mortgage Company to Enter a Loan Modification Agreement

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH... LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY...