There has always been movement of people and now children across international borders due to a multiplicity of reasons. These reasons include international employment, asylum seekers, adoption, and even stranded in foreign countries. For states to handle such alien families, the individual family laws of every state had to broaden its scope. The international family phenomena raised special questions in law, and need for legislation of specific statutes to conform.
Some of the special cases in this sphere are:
Family visas for expatriate employees
Stranded and unaccompanied minors arriving into a country
Minors separated from their parents/guardians in a foreign country
Children born of surrogate mothers and those adopted
Migrant or refugee children and rescued abductees
This is one area where the family law is applied alongside the immigration laws. Enforcing immigration laws in isolation will consequently infringe on the rights of children. Deporting or incarcerating a minor becomes a moral as well as a legal question. Naturally, minors are presumed wards of the state where parents are absent, and are therefore protected under the family law. Subsequently the departments of children welfare and immigration work together such that the child’s rights are sacrosanct.
Divorced or separated parents of different nationalities require a legal framework in which to handle matters of child custody. Whereas the child takes on the citizenship of the country of birth, the foreign spouse has parental rights over the child. So, how does such a parent take custody of the child across borders? Does he/she have recourse at the family law courts? What about a citizen bringing in an adopted child from abroad? Is the adopted child protected under the family law in the new family created thus by law? There is also the special case of a child born of a surrogate and a foreign surrogate. What are the rights of such children and does the surrogate have any rights?
These are some of the pertinent questions that family law addresses in the protection of families and children in the global village that is the world today. International immigration and family law is intersectional in nature dealing with two facets of state law. In its application, care is taken to observe local law provisions against the guidance of international statutes like the UN and Hague conventions as well as regional best practice. This is so because unlike the other family law cases that are resolved through local jurisdiction, cases under immigration and family jurisprudence can be referred to international courts.
For the international community, these provisions under immigration and family law offer protection and redress in the event one suffers an injustice or prejudice on foreign soil.
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