“Travel,” Mark Twain said, “is fatal to prejudice, bigotry, and narrow-mindedness.” If you or  your spouse were fortunate enough to be stationed abroad on an American military base or U.S. government installation, you got an opportunity very few Americans and Virginians get. You two were free to explore foreign countries, sample exotic foods, and perhaps fall under the romantic spell of distant lands. But what happens in a Virginia divorce to your child born abroad?

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How Many Children are Born to American Citizens Abroad?

You may consider yourself among the chosen few to serve abroad. The number of Americans overseas is 5.4 million, according to the Association of Americans Resident Overseas (AARO). With our country’s 335 million inhabitants, that is only about 1.6 percent of the country’s population!

As with any group, those 5.4 million Americans abroad find romance and start families and many families move abroad for work and birth their children overseas. American Citizens Abroad (ACA) estimates roughly 60,000 babies are born to American citizens abroad each year. Most (about 90 percent) gain American citizenship at birth. Around 6,000 babies do not. American citizenship is the first hurdle in dealing with child custody in Virginia.

Statutory Requirements for Citizenship

America grants citizenship in three ways:

  1. Birthright — Anyone born in the United States automatically becomes an American citizen
  2. Naturalization — A person becomes a citizen sometime after birth
  3. Derivation — A person born of U.S. citizens is a U.S. citizen

For our immediate purposes, the first (easy peasy) way is not pertinent. We will explore the other two methods, swaddled as they are in all sorts of legal issues.

Have you ever noticed that some government language has an ominous tone to it? Phrases like, “Papers, please,” or “I was just following orders.” For babies born to Americans overseas, the three-word phrase to worry over is “certain statutory requirements.”

Consular Report of Birth Abroad (CRBA)

The most important statutory requirement for a baby born abroad is the CRBA, or Consular Report of Birth Abroad. That one document is far more valuable to American parents overseas than another country’s birth certificate, baby’s first picture, or a stack of diapers.

The CRBA (also called Form FS-240) proves the child is a U.S. citizen at birth, names the parents, and indicates that at least one parent is a U.S. citizen.

Is an Overseas Military Base U.S. Soil?

Military bases overseas are not U.S. soil for purposes of citizenship. Embassies and consulates are also not U.S. soil, despite what you see in movies.

The only way a baby born abroad at a U.S. installation of any sort — at Greenland’s Pituffik Space Base, a CDC early warning office, McMurdo Station in Antarctica, a USAID center, or the U.S. Embassy to the Holy See — can become a U.S. citizen at birth is through derivative citizenship (at least one parent is a U.S. citizen).

Lacking a CRBA, the baby can become a U.S. citizen through naturalization. This is the path necessary if both parents are noncitizens or if sufficient proof of citizenship is not available at birth. The U.S. Department of State offers details on applying for such “child citizenship.”

Best Interests of the Child

If both parents are American citizens and the child has a CRBA, the child custody case proceeds as normal. Wrinkles only arise when questions of immigration status arise, but in Virginia the overriding concern every Circuit Court judge addresses is: What is in the best interest of the child?

That phrase is dotted throughout the Code of Virginia. Both parents — two U.S. citizens; two naturalized citizens; one U.S. citizen and one legal or illegal immigrant — have equal rights to custody, to child support, and to all the applicable divorce laws of the Commonwealth. While citizenship may matter, the needs of the child matter more. And all Virginia laws support protecting the child from the potential psychological and emotional effects of separation and divorce. The child, after all, is an innocent party to the process.

Your Right to Your Child

Regardless of the citizenship status of either parent or child, courts recognize parents have a legal right to their children. Even in divorce, both parents have equal legal rights to relationships with their children, no matter the parents’ or child’s citizenship status.

Even undocumented immigrants enjoy legal rights under the 14th Amendment to the U.S. Constitution. Those rights include the right to due process, equal protection under the law, and  legal and physical custody of their children in child custody disputes.

Since a Virginia separation and divorce can take more than a year, a property settlement agreement can include parent visitation and child custody schedules. These ongoing schedules can be subject to revision after citizenship and immigration matters are settled. Those matters may occur years after the separation and divorce are made final. In the life of a child, those years can be crucial.

Deportation Threats

U.S. citizens almost universally cannot be deported. Extremely rare exceptions do exist, such as having gained citizenship fraudulently, having dual citizenship, and voluntarily renouncing U.S. citizenship. Permanent residents, citizens of other countries who reside in the U.S., and holders of green cards can be deported.

A child born abroad on a U.S. installation is unlikely to have a parent facing deportation by the United States, since the parents already cleared security to be on the U.S. base. Still, a scenario exists in which a U.S. citizen fathers a child overseas with a woman who is not a citizen of the United States. The parents could have the child delivered in a medical facility on a U.S. base or installation. The family could return to Virginia with the mother considered a legal immigrant.

This scenario is extremely unlikely. Yet the threat of deportation of one parent is the only legal way to affect child custody of a foreign-born child born to a U.S. citizen.

Deportation is not divorce, so an immigration lawyer is the best defense for either parent facing deportation threats. When dealing with both immigration and family law matters, a divorcing Virginia man needs two attorneys, each specializing in the different legal spheres.

What if a Parent Faces Deportation?

The worst scenario for a child custody case would be an immigrant parent facing imminent deportation. If both parents and their attorneys (family law and immigration) see that as a real possibility, both parents would be wise to agree to sole physical and legal custody by the U.S. citizen parent. This may be heartbreaking for all involved, but it preserves some semblance of the family and prioritizes the best interests of the child.

The property settlement agreement generated in separation and divorce can spell out this voluntary child custody arrangement. It should also detail methods of communication between both parents and the child, even after deportation. The property settlement agreement can be used to demonstrate the desire of both parents to maintain family structure even in the face of deportation.

Call The Firm For Men

For separation, divorce, and child custody matters connected to a child born abroad, the experienced attorneys of The Firm For Men are ready to help. Since many Virginia men enjoy the rare privilege of serving overseas, our firm is familiar with the intricacies of military divorce, dealing with international issues, and handling complex child custody matters. Contact our Virginia Beach office or call us at (757) 383-9184.