The New Jersey Appellate Division decided in H.S.P. v. J.K. that a Family Part judge cannot make a determination that a child is “abandoned” for the purposes of gaining Special Immigrant Juvenile (“SIJ”) status if there is still one parent who has not abandoned the child and if reunification with that parent is viable. In the aforementioned case, the Appellate Division agreed with the Family Part that it could not determine that the child’s mother had abandoned the child, despite the fact that she provided an affidavit to the Court that she abandoned him. The Court based its decision upon the fact that although the child was living in impoverished conditions in India, the mother was not willfully neglectful of the child. While the mother did not have financial means to allow the child to live outside of the impoverished conditions, lack of financial ability does not necessarily equate to neglect. Further, the Court took notice of the fact that the mother paid for the child to be transported to the United States and continues to speak to the child regularly. The Court found that this was not abandonment. As a result, the Court declined to make a best interest analysis.
The Appellate Division clarified that the purpose of SIJ status is not to provide a “gateway for all abused or impoverished foreign juveniles to enter the United States.” Further, the Court clarified that it did not find that it was Congress’ intention to encourage illegal entry into the Country. As a result, the Family Part is not empowered to make a determination of neglect or abandonment for the purposes of fulfilling the requirements for SIJ status. If you are seeking guardianship or custody of a foreign child with the intention of obtaining SIJ status for that child, it is important that you speak with an experienced Family Law practitioner and/or an immigration attorney. Posted by Robyn E. Ross, Esq.