Appellate Division Overturns Denial of Application to Obtain Custody of Sibling Immigrating to New Jersey From Guatemala

The first Tuesday of every November serves as Election Day in New Jersey and across the United States.  Immigration, both legal and illegal, continues to be controversial issue in current elections.  On Election Day Eve, November 2, 2015, the New Jersey Appellate Division published their Opinion in OYPC v. JCP, — N.J.Super. — (App. Div. 2015), addressing the issues of immigration and custody.  In the case, an older sibling petitioned the court to gain custody of her eighteen year old brother.  Her brother was born in Guatemala, where the father’s name was not listed on the boy’s birth certificate, nor was the father involved in the boy’s life.  The boy’s biological mother (JCP) never disclosed to the child that he was his mother.  Rather, after the boy was born, JCP turned the boy over to his 17 year old sister (OYPC) to be raised as her own child, and JCP pretended to be the boy’s grandmother.  The sister (OYPC) cared for both the boy and her mother (JCP), and OYPC also supported the family.


OYPC moved to the United States without legal documentation in order to be able to financially support the boy and her mother.   She left the boy with his “grandmother”.  OYPC’s brother, however, was soon being harassed by the local gangs in Guatemala, and OYCP made arrangements for him to visit her in the United States.  At this time OYPC revealed to him that she was actually his biological sister, not his mother.   The boy lived with OYPC in the United States and was enrolled in the local high school, where he was a student when his sister, OYPC, filed an application seeking custody of him.

The family court denied OYPC’s application for custody, on the grounds that her brother was above the age of eighteen.  Relying on the definition of a “juvenile” found in the Code of Juvenile Justice, N.J.S.A. 2A:4A–22(a), the court reasoned that under New Jersey law, the brother was no longer subject to the jurisdiction of the Family Part.

The Appellate Division reversed that decision, finding that the family court failed to apply federal law and recognize that OYPC’s petition was the first step in the process of seeking Special Immigrant Juvenile (SIJ) status from the federal government under the Immigration Act of 1990 (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub.L. No. 110–457, 122 Stat. 5044 (2008)).  Specifically that the statute provides that SIJ status can be granted to an alien present in the United States:

“who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law[.]”  18 U.S.C.A. § 1101(a)(27)(J)(i).

Federal implementing regulations provide that an alien is eligible for SIJ classification if the alien is “under twenty-one years of age.” 8 C.F.R. § 204.11(c)(1).4   The TVPRA, as interpreted by the federal agency responsible for its implementation, applies to “juveniles” under age twenty-one. See 8 U.S.C.A. § 1101(a)(27)(J); 8 C.F.R. 204.11(c)(1).  After the trial court rendered its decision,  the New Jersey Supreme Court decided H.S.P. v. J.K., ––– N.J. –––– (2015), which clarified the Family Part’s obligations in deciding SIJ petitions.

The Appellate Division remanded the case to the trial court Family Part to make the following findings based on the federal statute and the regulations as modified by the TVPRA, namely whether:

(1) The juvenile is under the age of 21 and is unmarried;

(2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;

(3) The “juvenile court” has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;

(4) That reunification with one or both of the juvenile’s parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; and

(5) It is not in the “best interest” of the juvenile to be returned to his parents’ previous country of nationality or country of last habitual residence[.]  [H.S.P., supra, ––– N.J. at –––– (slip op. at 18) (quoting In re Dany G., ––– A.3d ––––, –––– (Md.Ct.Spec.App.2015)).]

Furthermore, the Appellate Division directed the family court on remand to address any state-law based relief and “[w]hen making that determination, the court should apply New Jersey law as it would in any other case of that type. For example, if on remand petitioner pursues custody of her younger brother, the trial court should apply New Jersey law to that application, as though it were an ordinary custody case.” In regard to this issue, the Appellate Division noted that:

“[T]he Family Part does have some sources of jurisdiction over persons between the ages of eighteen and twenty-one. For example, ‘the Resource Family Parent Licensing Act authorizes DYFS to place an individual between eighteen and twenty-one years of age in a resource family home, a group home, or another institution, when that individual is ‘enrolled in a school or training program below college level.’ State ex rel. J.S., 202 N.J. 465, 479, 998 A.2d 409 (2010) (citing N.J.S.A. 30:4C–26(a)); see N.J.S.A. 30:4C–27.5. The Age of Majority Act contains an exception for “persons between 18 and 21 years of age who seek to avail themselves of such services and who are enrolled in a school or training program below college level.” N.J.S.A. 9:17B–3. See also N.J.S.A. 9:17B–2(f) (declaring that the Legislature did not intend to “[a]lter the provision of services pursuant to the laws relating to dependent and neglected children [under N.J.S.A. 30:4C–1 to –44] to persons between 18 and 21 years of age who seek to avail themselves of such services and who are enrolled in a school … below college level’).

 The same statute excepts from its definition of adulthood-at-age-eighteen “the right of a court to take any action it deems appropriate and in the interest of a person under 21 years of age.” N.J.S.A. 9:17B–3. Additionally, under Title 9, a “placement may be made or continued [emphasis added]” under N.J.S.A. 9:6–8.54 “beyond the child’s eighteenth birthday” with the child’s consent. N.J.S.A. 9:6–8.54(c). See also N.J.S.A. 30:4C–11 (detailing the procedures for an application for care and custody); N.J.S.A. 3B:12A–4(a)(6) (addressing kinship legal guardianship of a juvenile over eighteen who is enrolled in high school).

The Appellate Division concluded that the sister will be allowed to update her application for custody of her brother, and the family court will have to make a determination on the issue within ninety (90) days on the date of the opinion.