As used in this part the term:

Adopted means adopted pursuant to a full, final and complete adoption. In the case of an orphan adoption, if a foreign adoption was not full and final, was defective, or the unmarried U.S. citizen parent or U.S. citizen parent and spouse jointly did not see and observe the child in person prior to or during the foreign adoption proceedings, an orphan is not considered to have been adopted and must be readopted in the United States or satisfy the requirements of section 101(b)(1)(E) of the Act.

Adopted child means a person who has been adopted as defined above and who meets the requirements of section 101(b)(1)(E), (F) or (G) of the Act.

Child means a person who meets the requirements of section 101(c)(1) of the Act.

Lawful admission shall have the same meaning as provided in section 101(a)(13) of the Act.

Joint custody, in the case of a child of divorced or legally separated parents, means the award of equal responsibility for and authority over the care, education, religion, medical treatment and general welfare of a child to both parents by a court of law or other appropriate government entity pursuant to the laws of the state or country of residence.

Legal custody refers to the responsibility for and authority over a child.

1. (1) For the purpose of the CCA, the Service will presume that a U.S. citizen parent has legal custody of a child, and will recognize that U.S. citizen parent as having lawful authority over the child, absent evidence to the contrary, in the case of:

   1. (i) A biological child who currently resides with both natural parents (who are married to each other, living in marital union, and not separated),
   2. (ii) A biological child who currently resides with a surviving natural parent (if the other parent is deceased), or
   3. (iii) In the case of a biological child born out of wedlock who has been legitimated and currently resides with the natural parent.
2. (2) In the case of an adopted child, a determination that a U.S. citizen parent has legal custody will be based on the existence of a final adoption decree. In the case of a child of divorced or legally separated parents, the Service will find a U.S. citizen parent to have legal custody of a child, for the purpose of the CCA, where there has been an award of primary care, control, and maintenance of a minor child to a parent by a court of law or other appropriate government entity pursuant to the laws of the state or country of residence. The Service will consider a U.S. citizen parent who has been awarded “joint custody,” to have legal custody of a child. There may be other factual circumstances under which the Service will find the U.S. citizen parent to have legal custody for purposes of the CCA.

[66 FR 32144, June 13, 2001, as amended at 76 FR 53799, Aug. 29, 2011]