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Los Mejores Intereses del Niño: Illinois Family Law & Federal Immigration Policy

Post Authored By: Antonio Del Fiacco & Jason A. Pica II

As any family law attorney in Illinois will tell you, the standard by which parental responsibilities and parenting time are allocated is “the best interests of the child.”[1] Because the phrase is light on details, Section 5/602.7 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) lists seventeen (17) factors to guide domestic relations courts in deciding these matters.[2] For the sake of this article, I want to highlight some of the factors enumerated in the statute:

  • the wishes of each parent seeking parenting time;
  • the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
  • the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;
  • the interaction and interrelationship of the child with his or her parents and siblings and with any other person who many significantly affect the child’s best interests;
  • the child’s adjustment to his or her home, school, and community;
  • the mental and physical health of all individuals involved;
  • the child’s needs;
  • the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
  • the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;
  • the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.[3]

Consider these factors as I pose the following question: If the child is an immigrant, would it be in his or her “best interests” to be forcibly separated at the border from the only parent and caregiver he or she had known?

Recently, our law firm faced these circumstances in a parentage case. Again, I ask you to consider the above factors in determining “the best interests of the child” as you read the facts: Our client, the mother, had lived with her minor child in Central America until they sought political asylum at the border in June 2021. The child’s father had only been present for the first three (3) months of the child’s life, and subsequently abandoned both our client and the child to live in the United States. Over the child’s first nine years, the father never once visited his child or the mother in their native country, nor did he make any contact with them for the sake of maintaining a parent-child relationship.

When the mother and minor child came to the U.S. to request political asylum, Immigration and Customs Enforcement (ICE) immediately took custody of the child and placed her in the care of the father in Illinois. While the mother awaited a decision on her asylum status in another U.S. state, the child lived with her father, a virtual stranger. Every time the child asked about her mother, the father threatened that “they” would deport the mother unless the child stopped her questioning The father repeatedly interfered with and blocked communication between the child and mother, and even failed to notify the mother when he and the child were in a car accident.

Fortunately, this story has a happy ending: with the assistance of our firm, the father eventually agreed to allow immigration authorities to reunite the child with her mother. If only countless more children like her were as lucky.

Four years after “kids in cages” became a rallying cry for immigration and asylum advocates, the situation for immigrant children in the U.S. has arguably become more dire. The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system, estimated last month that one of every three people (approximately 650,000 out of 2 million) held in a Border Patrol facility from February 2017 through June 2021 was a minor.[4] Of those 650,000 minors, about one-third (approximately 220,000) were held for longer than 72 hours, the maximum limit for border detention of children drawn by anti-trafficking legislation.[5]

The only reason those detention numbers dipped in that time period was the beginning of the COVID-19 pandemic and the Trump administration’s implementation of Title 42, a public health order designed to prevent the spread of communicable diseases and which immigration officials used to expel most unauthorized border crossers.[6] According to the Marshall Project, the number of detentions has slowly climbed again during the Biden administration.[7]

To complicate things further, Republican leaders in border states have used the upcoming midterm elections to not only inflame their base against immigrants and asylees, but potentially invite a battle in the courts as well. On July 7, 2022, Texas Governor Greg Abbott signed an executive order directing the state’s National Guard and Department of Public Safety to respond to a supposed border crisis “by apprehending immigrants who cross the border between ports of entry or commit other violations of federal law, and to return those illegal immigrants to the border at a port of entry.”[8] This move raises significant legal issues. Since 1889, the Supreme Court has consistently reserved the power to regulate immigration to the federal government, reasoning that admitting and excluding non-citizens is inherent to the federal government’s constitutional duty to exercise sovereignty over national territory.[9] Although some observers of Abbott’s order argue that transporting migrants to a port of entry is already common practice for local officers, immigration experts and advocates are raising alarms about what they consider a radical shift towards state governments policing the national border.[10]

To counter these new attacks on immigrants, more states should follow Illinois’ example in passing laws like the Way Forward Act, signed into law by Governor J.B. Pritzker in August 2021. The Way Forward Act brings an end to immigrant detention in Illinois and other forms of cooperation between local governments and ICE.[11] Immigration authorities’ predictable and unfortunate response to this law was to transfer detainees in Illinois to other states.[12] However, this response also emphasizes the need for more laws like Way Forward across the country. So long as congressional deadlock prevents immigration reform at the federal level, any reduction in the number of states which detain immigrants will make a tremendous difference.

The case of our firm’s client and her child has repeated thousands of times in recent years and with far worse results. The horrific events in San Antonio, Texas last month, in which 53 migrants, some of them minors, suffocated to death in a tractor trailer after their smugglers abandoned them in the heat, is but the most recent and notable example.[13] Without a substantial overhaul in immigration policy, one which respects and protects human life, more children will become victims. I pursued a career in immigration law to help end very preventable tragedies like what happened in San Antonio.

Family lawyers in Illinois – good ones who take the “best interests of the child” standard seriously – will find their goals and those of immigration advocates cleanly intersect.

[1] See 750 ILCS 5/602.7

[2] Id.

[3] See 750 ILCS 5/602.7

[4] “No Place for a Child,” The Marshall Project, 2022.

[5] William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

[6] “No Place for a Child,” The Marshall Project, 2022.

[7] Id.

[8] Executive Order GA-41.

[9] Chae Chan Ping v. United States, 130 U.S. 581 (1889); See also Fong Yue Ting v. United States, 149 U.S. 698 (1893), Arizona v. United States, 567 U.S. 387 (2012).

[10] James Barragán and Uriel García, “Legal questions shroud Gov. Greg Abbott’s move to bus migrants back to the border,” The Texas Tribune, August 1, 2022. (accessed August 2, 2022).

[11] 5 ILCS 805/5.

[12] Elena Malagón, “Immigration detention ends in Illinois after ICE transfers those awaiting deportation to out-of-state jails,” Chicago Sun-Times, Feb. 15, 2022. (accessed July 24, 2022).

[13] Jaden Edinson and Patrick Svitek. “At least 50 people found dead in abandoned 18-wheeler in San Antonio,” The Texas Tribune, June 27, 2022. (accessed July 24, 2022).

About the Authors:

Antonio Del Fiacco is a native of the Chicago area and earned his Bachelor of Arts degree in Political Science from the University of Missouri, Columbia. He is currently a rising 4L at DePaul University College of Law, where he serves as a Research Assistant in immigration law matters for Professor Craig Mousin, as well as the President of the Society for Asylum and Immigration Law. A son of Italian and Greek immigrants, Antonio has a passionate interest in immigration law and hopes to create an America that offers every immigrant the same opportunity afforded to his family. He currently works as a Summer Law Clerk at Chicago Family Attorneys, LLC. 

Jason A. Pica II is a senior associate attorney with Chicago Family & Immigration Services, LLC as well as a Staff Attorney and the Vice President on the Board of Directors of Chicago Advocate Legal, NFP. Jason founded J. Pica Mediation, LLC, where he is perfecting a mediation model specifically for families of color. He focuses his practice primarily on divorce and family law as well as adoptions, guardianship of minors in probate, and DCFS appeals. Jason received his Bachelor of Arts and Master of Social Work from Loyola University Chicago and his Juris Doctor from the University of Illinois-Chicago School of Law.

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