Interim Decision #2802 

MATTER OF RIVERS 

In Visa Petition Proceedings 

A-22625028 

Decided by Board June 30, 1980 

(1) Unless local law otherwise dictates (i.e. through statutory or case law giving greater 

rights to one parent than to the other), a father's natural right to the custody of a child 

he has lawfully legitimated is equal to the natural right of the mother to the child's 

custody. To the extent that Matter of Harris, 15 I&N Dec- 39 (BIA 1970) and Matter of 

Dela Rosa.14 I&N Dec. 728 (BIA 1974) indicated that only the mother had a natural 

right to the custody of a legitimated child, these cases are modified. 

(2) The natural father of a child will be presumed to have had legal custody of that child 

at the time of legitimation, in the absence of affirmative evidence indicating otherwise. 

(3) Unless there is evidence to show that the father of a legitimated child has been 

deprived of his natural right to custody, he will be presumed to have an equal right to 

custody with the child's mother, and to satisfy the legal custody requirement of 

section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(C). 

(4) Visa petition filed by a lawful permanent resident for a child born out of wedlock but 

legitimated under the law of the Virgin Islands, where the petitioner resides, held 

improperly denied by District Director on ground child was not in the legal custody of 

the father at the time of legitimation, since the father is presumed to share legal 

custody with the mother upon legitimation. 

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE 

Wojciech P. Makowski, Esquire Janice Podolny 

Legal Services of the Virgin Islands Acting Appellate Trial 

17 Estate Orange Grove Attorney 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

By: Milholl an, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

This is an appeal from a decision of the District Director, dated May 

14, 1979, dewing a visa petition filed on behalf of the beneficiary as the 

petitioner's unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). Oral argument was 

heard before this Board on October 4, 1979. The appeal will be 

sustained. 

The petitioner is a 31-year-old native of St. Kitts, and is a lawful 

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Interim Decision #2802 

permanent resident of the United States. The beneficiary is an 11-yearold native and citizen of St. Kitts, and was born out of wedlock to the 

petitioner and a woman he never married. The instant visa petition 

was filed on February 2, 1979. It was denied on the basis of the District 

Director's finding that the beneficiary could not qualify as the petitioner's legitimated child under section 101(b)(1)(C) of the Act, 8 

U.S.C. 1101(b)(1)(C). 

The beneficiary of a visa petition can qualify as a petitioner's "unmarried daughter" for preference purposes only if the beneficiary 

qualifies (or could once have qualified) as a "child" of the petitioner 

under section 101(b)(1) of the Act. Section 101(b)(1) includes within the 

definition of "child": 

a child legitimated under the law of the child's residence or domicile, or under the law 

of the father's residence or domicile, whether in or outside the United States, if such 

legitimation takes place before the child reaches the age of eighteen years and the 

child is in the legal custody of the legitimating parent or parents at the time of such 

legitimation. (section 101(b)(1)(C)).. 

In the present case, the District Director did not dispute, and at oral 

argument the Immigration and Naturalization Service conceded, that 

the beneficiary had been legitimated under the law of the Virgin 

Islands, where the petitioner resides. Transcript at 13. However, the 

District Director determined that the beneficiary could not qualify as 

the petitioner's child under 101(b)(1)(C) because the legal custody 

requirement of that section had not been satisfied. He relied for that 

finding on this Board's prior decisions in Matter of Harris, 15 I&N Dec. 

39 (BIA 1970) and Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974). 

Iri Dela Rosa and Harris, we strictly interpreted the legal custody 

requirement of section 101 (h)(1)(C), holding that legal custody would 

vest only "by virtue of either a natural right or a court decree." We 

further stated in those cases, the general rule that the mother of an 

illegitimate child has the primary right to the custody of that child. 

Based upon this we found that the fathers in the two cases had not met 

the legal custody requirement. Strong dissents by two Board members 

were registered in both of these cases. After careful consideration, we 

have determined that the legal custody rule set forth in Dela Rosa and 

Harris requires modification. 

While it is true that the mother of an illegitimate child is presumed 

to have custody of that child, the same is not true where the child has 

been legitimated. Cases construing the prior California law regarding 

legitimation (Section 230 of the California Civil Code) hold that once 

the natural father has legitimated. his child, the child's 

status becomes that of the legitimate child of both of its natural parents, and 

the ... rights of the child and of the, parents thenceforth are the same as they would be 

had the child been born of the marriage of its natural parents ... neither of such 

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parents has a superior right to [the child's] custody... 

In Re Navarro, 77 Cal. App.2d 500, 505,175 P.2d 896, 899 (Dist. Ct. Ap. 

Cal. 1946). See also In Re Richard, 122 Cal. Rptr. 531, 537 P.2d 363 

(1975); Donnally v. Blackenstein, 167 Cal. App.2d 282, 334 P.2d 260 

(Dist. Ct. Ap. Cal. 1959). 1The petitioner's attorney at oral argument 

contended that it is also true in the Virgin Islands that each parent of a 

legitimated child had equal rights in and obligations to the child. In 

support of this contention, counsel has submitted on appeal the unpublished decision of a Virgin Islands judge in a child custody case. The 

judge makes clear in his decision that "as between the mother and 

father" of a child born out of wedlock, each has an equal right to 

custody.' We agree with the reasoning expressed in the cited cases, and 

we therefore hold that where a child born out of wedlock has been 

properly legitimated, neither parent will be presumed to have a 

greater right than the other to the legal custody of that child. 

As previously stated, Dela Rosa, supra, and Harris, supra, require 

either a court order or some "natural right" of custody to exist before a 

finding can be made that a father has "legal custody" for purposes of 

section 101(b)(1)(C). We have determined that our prior view of 

"natural right" was too restrictive in that it recognized only a mother's 

natural right in a child. We now hold that unless the local law 

otherwise dictates (i.e. through statutory or case law giving greater 

rights to one parent than to the other), the father's "natural right" to 

the custody of a child he has legitimated is equal to the "natural right" 

of the mother to the child's custody. To the extent that Dela Rosa, 

supra, and Harris, supra, indicated otherwise, they are hereby modified. By legitimating his child, the father has evinced his concern for 

and interest in his natural offspring. At that point, we can see no 

reason why the mother should have a greater right to the child than 

the father. The paramount consideration should then be, as always, the 

best interest of the child. See Dcmnally, supra. It is not for us, or for the 

' The citation of cases construing section 230 of the California Civil Code is appropriate in this ease, as section 230 is identical to Title 16, section 462 of the Virgin Islands 

Code. Both statutes provide: 

The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and 

otherwise treating it as if it were a legitimate child, thereby adopts it as such; and 

such child is thereupon deemed for all purposes legitimate from the time of its birth. 

We note that in 1975 section 230 was replaced by the Uniform Parentage Act in 

California. 

* Counsel could cite no published eases on this point, and WP have searched the Virgin 

Islands law, and have found nothing published on the issue. For cases from other 

jurisdictions following the California legal custody rule, see e.g. In re Sution,132 W.Va. 

875, 53 S.E. 839 (1949); Allisonv. Bryan„ 21 Okla. 557, 97P. 282 (1908). See also 10 Am. Jur. 

3d &slat cls § 66; 10 C.J.S. Bastards, § 14, 17c 
Interim Decision #2802 

Immigration and Naturalization Service, to say what that is. The 

determination of whether, for example, such a child would be better off 

in the United States or in his native country, is to be made by the 

child's natural parents, or if necessary by a probate court, not by 

immigration officials. 

We do not by our decision in this case write the legal custody 

requirement out of the statute. What we do is change the presumption: 

rather than require affirmative evidence that the mother of a legitimated child has been deprived of custody, we will presume that the 

father has not been divested of his natural right to equal custody in the 

absence of affirmative evidence indicating otherwise. We believe that 

this interpretation of the legal custody requirement will give better 

effect to Congress' humane and remedial intent in including a legitimated child within the definition of child. See generally Matter of 

K—W—S—, 9 I&N Dec. 396, 409 (BIA 1958,1961; A.G. 1961). 

The primary purpose behind the legitimation requirements of section 101(b)(1)(C) is to prevent the circumvention of the immigration 

laws. We do not see how today's ruling will in any way promote or 

encourage fraud. The requirement that the child be legitimated under 

the applicable law remains in full force. By taking , the steps necessary 

to legitimate his child, prior to a time when any immigration benefit 

was sought, the beneficiary's natural father has shown the existence of 

a genuine parental relationship to his daughter. This is not a situation 

where there has been an ad hoc legitimation of a child solely to secure 

immigration benefits. Moreover, where there has been ad hoc legitimation in order to circumvent the immigration laws, a visa petition could 

still be properly denied. This situation would generally occur when the -

rights of other parties, such as adoptive parents, stepparents, or a 

natural mother who has been awarded custody, have intervened. Such 

is not the situation here, or in the majority of cases. 

Under our prior interpretation of legal custody, it was difficult for a 

father who had gone to the trouble of legitimating his child, and who 

undoubtedly was the child's natural father, to qualify as the child's 

father under the immigration laws. Previously, if a father, as in this 

case, legitimated his child at an early age, but long before seeking 

immigration benefits through or on behalf of that child, he would be 

likely to find himself unable to satisfy the legal custody requirement 

when he later sought an immigration benefit. In a rare case, the 

mother may have abandoned the child, or otherwise relinquished all 

custody. (See e.g. Matter of Buenaventura,16 I&N Dec. 456 (BIA 1977)). 

In the usual case, however, this would not have occurred, and the 

father would find that it was simply too late to satisfy the requirements of 101(b)(1)(C), as he had long ago legitimated the child but had 

not at that time had legal custody under Dela Rosa, supra, and Harris, 

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supra, perhaps only because he did not then know of that requirement, 

and of our strict interpretation of it. We believe that Congress, whose 

overriding purpose has been to encourage family unity, would prefer a 

rule that does not make legitimation under the immigration laws so 

burdensome. 

Under Dela Rosa, supra, and Harris, supra, legal custody for purposes of section 101(b)(1)(C) required, in effect, actual physical custody 

of a child, and custody to the exclusion of everyone else, including the 

child's mother. Yet we have not had such a restrictive definition of 

legal custody under section 101(b)(1)(E), which defines adopted children. The cases have been clear that a parent may have legal custody of 

an adopted child while not residing with that child, and where in fact 

the parent and child may be thousands of miles apart. See Matter of 

Cho,16 I&N Dec. 188 (BIA 1977); Matter ofM—, 8 MN Dec. 118 (BIA 

1958; A.G. 1959). Moreover, in light of our holding that the natural 

parents of a child who has been legitimated have equal rights to the 

custody of that child, the exclusive custody aspect of our prior holdings 

is inappropriate. 

In sum, today's decision recognizes the natural rights of a legitimated child's father. We are not saying that the father's rights are 

now paramount, only that his rights together with the equal rights of 

the mother are paramount to the rights of any other party. Under our 

decision today, a father of an illegitimate child will no longer have to 

know in advance of section 101(b)(1)(C)'s legal custody requirement in 

order to satisfy that requirement. Unless there is evidence to show 

that the father of a legitimated child has been deprived of his natural 

right to custody, he will be presumed to share custody with the mother, 

and to satisfy the legal custody requirement of section 101(b)(1)(C). 

In the present case, the petitioner has indisputably legitimated the 

beneficiary under the applicable law, and there is nothing whatsoever 

to indicate that his natural right to custody has vested in someone else. 

He therefore qualifies as the father of the beneficiary for immigration 

purposes. His appeal will accordingly be sustained, and the visa petition will be approved_ 

ORDER, The appeal is sustained, and the visa petition is approved.