What Parents Need to Know About Custody and Citizenship for Children

If you’re working through the process of obtaining U.S. citizenship for your child, there’s a recent update from U.S. Citizenship and Immigration Services (USCIS) that’s worth your attention. On November 19, 2024, USCIS issued new guidance on determining custody for children acquiring citizenship. These updates will hopefully clarify the rules and address longstanding confusion around legal and physical custody requirements.

Here’s what it all means for parents navigating these cases:

Legal Custody: What Counts?

Under the new rules, USCIS will recognize legal custody in more situations, even without a formal court order. For example, if a U.S. citizen parent has uncontested, actual custody of a child but there’s no judicial determination of custody, that parent is now considered to have legal custody—provided the laws of the relevant jurisdiction don’t specify otherwise.

The guidance also clarifies the use of nunc pro tunc custody orders. In legalese, this means a court can issue an order retroactively to correct or address custody determinations. Simply put, if a custody order is issued today but applies to a past date, USCIS will consider that retroactive period when determining legal custody.

USCIS has even opened the door to recognizing private custody agreements in certain circumstances, giving parents more options when formal custody arrangements aren’t feasible.

Physical Custody: Living Together Matters

Physical custody is now clearly defined as residing or physically living with the U.S. citizen's parent. In other words, if your child is living in your home, you meet the physical custody requirement. This straightforward clarification removes the ambiguity that previously caused headaches for many families.

Older Cases: Guidance for Pre-2000 Claims

For families whose citizenship claims involve laws predating the Child Citizenship Act of 2000, the new guidance clarifies legal custody requirements under former INA section 321. This ensures that even older cases are handled with consistent standards.

The Oath of Allegiance

USCIS reaffirmed that a Certificate of Citizenship cannot be issued unless the applicant takes the Oath of Allegiance (or qualifies for a waiver). This is a critical step, so if it applies to your case, make sure it’s on your radar and get top-tier legal assistance at an affordable price with a Harmony Law attorney that we’ll match you within your hometown. 

These updates are more than just legal adjustments. They’re designed to bring clarity to a process that can overwhelm families. They ensure more consistent determinations of legal and physical custody, making it easier for families to move forward with their citizenship applications.

They also reflect a broader effort under Executive Order 14012 to remove barriers to citizenship and rebuild trust in the immigration system. Despite the positive step forward, many people are concerned about how an incoming second Trump Administration will affect the recent announcement by USCIS. It’s understandable to have deep concerns and fear. However, the best strategy is to be prepared.

HarmonyLaw.com: Here to Help with Empathy and Expertise

At HarmonyLaw.com, we understand the challenges of immigration and family law—especially concerning something as important as your child’s future. These updates are promising, but they can still feel overwhelming without the proper guidance and shifting political winds. That’s where we come in.

With a HarmonyLaw.com attorney right in your hometown, you’ll have access to skilled, compassionate representation tailored to your needs. Whether you’re dealing with complex custody issues or preparing a citizenship application, we’re here to provide the expertise and care you deserve.

Contact us today, and let us help you protect what matters most—your family.