Statement of Facts
Jane is a fourteen year old Canadian, whose parents have been divorced for six years. Full custody rights were given to both parents by a Canadian court, but she has spent most of her time in Quebec with her father John. She visits her mother Ann in New York during the school holidays. During one such visit, she called her father requesting to return to Canada since she was not getting along well with her mother. However, her father refused, saying that she should just try to cope with the situation until the holiday is over.
One day her mother came from work and found a message left by Jane that she had gone to stay with her uncle Bill, who lives in California. On her way to stop her, Ann dies in a road accident. Bill intends to file for asylum on behalf of Jane with the Citizenship and Immigration Services department. Jane has expressed fears for her life, particularly with a separatist movement dedicated to the creation of an independent French Canadian state, in which his father is a member.
Legal Issues Relevant to the Case
Termination of custodianship rights- circumstances under which John’s custodian rights can be revoked.
Court jurisdiction over Jane- whether Jane’s case can be decided by an American court since she is not a citizen
US laws on immigration and naturalization- circumstances under which asylum can be given
Legal provisions intervention/adoption on child custody- legal provisions for Bill’s intervention
Jane’s case presents a complex legal scenario in which the law gives her parents both constitutional and natural rights over her, while at the same time limiting the extent to which they can exercise these rights, and the circumstances under which they are applicable. Secondly, she is Canadian but presently living in the US, which brings into play the issue of legal jurisdiction as provided by the US law. Thus, a legal proceeding to offer her asylum hinges on the provisions of the US laws on immigration and naturalization, which could either hinder or facilitate the asylum case intended by her uncle. She has not lived in the US for more than the six months necessary to put her under US laws: yet, the case is within US jurisdiction, since that is where she has sought help and is living at the moment. This notwithstanding, regardless, both the naturalization and immigration rules make her uncle’s case weak against her Canadian citizenship and the full custody rights possessed by her father. Additionally, custodian rights were determined in Canada during the divorce, making it easier for her father to demand an hearing in the same court. Nonetheless, Bill can only file a case with the US Citizenship and Immigration Services Department on grounds of Jane’s best interests, which must be proven by sufficient evidence that her life will be threatened if allowed to return to Canada.
Analysis of Facts and Issues
The US common statutory law provides that biological parents have absolute rights regarding the upbringing and residence of the child. Effectively, John, Jane’s father, will prevail against Bill’s intervention in the case since he is only a relative. The fact that he is 21 years old further tilts the odds against his chances of successfully filing a case for asylum on her behalf, given the fact that her father is capable of taking care of her, and she is not under any threat- at least not one that can be immediately verified, since the court may not rely on claims against the Canadian separatist movement. Under the “ponderance of evidence clause,” Bill must prove beyond any reasonable doubt that indeed the separatist movement poses a serious danger Jane if she were to return to Canada, especially on the claims of victimizing her for propaganda purposes. On this score, the involvement of her father in the movement makes a strong case for asylum. Additionally, the movement’s agenda, which is the creation of an independent French Canadian state, denies John the provisions of Canadian laws which apply to Jane. Since she is not involved in the movement, and she has expressed her sentiments against the movement, makes her free from the influence of her father pertaining to her citizenship. The separatist movement is clearly against the constitution of Canada, and it is accurate, therefore, for the court to interpret this as a denouncement of Canadian citizenship by its members. As such, it is outside John’s legal rights to force Jane into the movement. However, this is a probable, but equally possible eventuality, whose reality Bill must demonstrate and substantiate to strengthen his case.
In most US states, the criteria in determining custody cases is to allowing courts to “modify custody when the circumstances of the custodial parent or of the children- and not of the non-custodial parent- have changed” (Hill and Hill 2005). In this case, John’s circumstances have changed significantly: besides working for a movement that undermines Canadian laws under which custody was awarded, he is widowed, and therefore very likely that he will not sufficiently provide for Jane’s rights.
Another legal issue is the history of Jane’s life with both her parents. There have never been cases of abuse by either parent. Accordingly, there is reason for the court to assume that his father will become abusive in future. During the divorce, both parents were given equal custody rights. At the death of her mother, all custody rights were automatically transferred to his father. In this case, Bill’s strategy is to prove before the court that John is unable to satisfactorily provide for Jane, by demonstrating from his (John) past behavior and acts in relation to Jane’s welfare. One implicating incidence is his outright dismissal of Jane’s concerns when she contacted him with a request to return to Canada because she was not getting along well with her mother. His response that she should “try to get along with her mother and remain in New York until the end of her school break as usual” is a clear demonstration of parental negligence. In fact, negligence of a child’s welfare is one condition under the US law in which child custodianship can be terminated and in its place, guardianship rights given to a relative. In this case, Bill is the immediate closest of kin available, and therefore justified in acting as an “intervenor” (Carper et al, 2007) in Jane’s best interests. If he can prove John’s negligence, the court will be inclined to assume it will happen in future and effectively terminate his custody and award it to him.
On the other hand, Bill himself must prove his ability to provide for Jane, both emotionally and financially. The former factor- emotional support seems to be a riding factor in Jane’s decision to run away, since she stated in her message that “she hated both of her parents and believed that neither of them cared about her at all.” In addition, it has been noted that there has been growing tension between Jane and her parents in the past two years, suggesting a deteriorating trend in their relationship. This is inferred from the fact that for this period of time, “she increasingly became argumentative with and emotionally distant from both parents.” The US case law determines cases from proven evidence and previous rulings related to the case. Parental attachment is one factor that determines custody rights, in an attempt to avoid severing a child from a parent figure to whom she/he is emotionally attached. The argument in favor of this approach is that “the rupture is too difficult to overcome and that children suffer from imperfect child custody laws” (Hill and Hill, 2005). However, whatever attachment that was there between Jane and her father has been weathered down over the past two years of their emotionally strained relationship, meaning that she will not suffer psychologically if she is separated from him.
Conclusion and Recommendations
A common pattern emerging in this case is the issue of Jane’s needs- in legal parlance defined as ‘her best interests,’ which his father is evidently either unable or unwilling to fulfill. Despite the fact that there are abuse incidences by her father, it can be assumed that the circumstances of his father and his acts make him unreliable to take care of Jane. His involvement with a separatist movement compromises Jane’s Canadian citizenship, while the death of her mother calls for a review of the custodian rights. Similarly, his acts of negligence demonstrate his uncaring attitude in regard to Jane’s welfare. Most importantly, however, the threat posed by the separatist movement, if proven to be real, provides sufficient grounds for Bill to seek asylum on her behalf. Conclusively, in view of these facts, and on the strengths thereof in relation to case and federal statutory law, Bill has enough legal grounds to file for Jane’s asylum with the Citizenship and Immigration Services department.
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