Who Will Care for My Child If ICE Arrests or Deports Me?

As undocumented immigrants discover often, U.S. immigration enforcement priorities can change overnight, leading to harsh measures against even longtime residents of the U.S. who lack immigration papers. Because it's a crime to enter the U.S. illegally, all undocumented immigrants in the United States are potentially subject to ICE arrest and deportation. Also, it's possible for someone who already holds a U.S. green card (lawful permanent residence) to face deportation proceedings, most likely because of a criminal conviction.

What's more, the second Trump Administration was elected on a promise of mass deportations. That represents a departure from Biden enforcement policies, which put criminals and people who are considered threats to public safety at the top of the removal list, but families with U.S. citizen children at the bottom. Starting in January 2025, however, U.S. immigration officers are being encouraged to act against any undocumented immigrant they encounter or pick up in a raid, without regard for family ties or other enforcement priorities.

Many immigrants facing possible removal are parents of young children, and many of those were born in the United States. If the parents are detained, jailed, and/or deported, their children could end up relegated to the local foster care system (unless the parents choose to have the children accompany them upon deportation). After a child has been out of a parent's custody for 15 of the past 22 months, federal law (the Adoption and Safe Families Act" or "ASFA") mandates that their parental rights be terminated; though with some exceptions, such as if they're being cared for by a family member. (See 42 U.S.C. § 675(5)(E).)

With careful planning, parents can make arrangements to ensure their children will be cared for and protected in the event of their deportation.

How Can I Make Child Custody Arrangements in Advance of Deportation?

The best way to protect your U.S. citizen child from becoming part of the foster care system is to plan ahead. It's important to make custody arrangements or appoint a guardian if you fear you could be deported from the United States. After you're deported, you could lose the right to have any input into where your child goes.

Arranging for a Child's Custody Transfer

A custody transfer begins with a voluntary, written agreement to assign your physical and legal custody rights to another trusted adult. Through this transfer, you can give a new custodian the right to physically care for your child and to make decisions regarding your child's health, education, and welfare.

Both a child's parents must agree to a custody transfer. If your child's other parent has custodial rights, you will need to get that parent's written consent to the proposed transfer. If the parent objects, you'll need to go to court, where a judge will make the final custody decision.

If the other parent agrees—or if you are the only legal parent—you and the proposed custodian should sign the agreement in front of a notary public (someone who can confirm the signer's identity) and submit it to the court. It will likely schedule a hearing to decide whether the custody transfer serves the child's best interests. If so, a judge will approve it.

Keep in mind that finalizing a custody transfer is a drastic solution and could be difficult to undo. If you want to regain custody later, you'll need to file a petition (written request) with the court. A judge will decide whether it's in the best interests of the child at that time to transfer custody back to you. You might want to include language in your agreement saying that the custody arrangement is intended to be in effect only during your deportation. A court will still have the authority to make final custody decisions, but these terms could give you a better chance of regaining custody if and when you're able to return to the United States.

Arranging Informal and Court-Ordered Guardianships for a Child

Another way to protect your child in advance of your possible deportation is to appoint a guardian without terminating your parental rights. An informal guardianship is a short-term solution that's commonly used in situations where a parent is unavailable or unable to care for a child.

Nolo's Law Forms for Personal Use book offers an informal guardianship form you can use to appoint another adult to care for your child and make decisions regarding your child's health, education, and welfare. Since you don't need court approval for an informal guardianship, it's a good idea to have this form notarized, so that doctors and school officials will be more willing to accept it.

You can establish a court-ordered guardianship by filing a written request with a court. Although state rules vary, most guardianship proceedings require the parent and proposed guardian to file written declarations agreeing to the arrangement. In certain situations, a guardianship can be established without parental consent—if the parent objects or can't be reached. For example, if you have a family member, such as an aunt, who's been caring for your child, she could petition the court to become your child's guardian immediately following your deportation. But if you believe you might be deported, and you already have someone identified who can raise your child in your absence, consider establishing a guardianship while you're still in the United States and can consent in writing.

Once officially appointed, the guardian has the right and obligation to provide your child with a home, education, and adequate health care until the guardianship expires, until the child turns 18, or until a court terminates the order. (You can retain certain legal rights, such as the right to make decisions about your child's medical care, through a health care directive—discussed below.)

A temporary guardianship will last only for a set period of time. Some states allow temporary guardianships to continue for up to six months, at which point they must expire or be converted into permanent guardianships. A permanent guardianship has no expiration date and requires the guardian to provide lifelong care for the child.

If you are able to return to the United States and want to regain legal rights to your child, you will have to undo the guardianship appointment. While a permanent guardianship can be difficult to undo, it's not impossible. A court can terminate or set aside the guardianship if a parent can show that circumstances have changed and the parent is willing and able to care for the child.

Creating Health Care Directives for a Child in Case You're Deported

Parents in the United States have the right to make health care decisions for their children, but in case they're not available to do so, they can use several types of health care directives to transfer those rights to another person. If you're facing possible deportation, consider creating a health care directive that designates a trusted adult to make medical decisions for your child.

If you want to have more of a say in your child's medical care, even while you are living in a another country, you can include specific health care directives for your child in advance of deportation. For example, you can use a medical directive to address things like whether your child should be given blood transfusions, surgery, antibiotics, tube feedings, or artificial respiration in the event of a severe illness or accident.

You can also use a health directive to create a regular health plan for your child, which might be especially important if your child suffers from a chronic illness and perhaps needs to be seen by a specialist every few months. If you appoint a guardian for your child and create a health care directive, you can ensure that the guardian will be required to follow your instructions for your child's medical treatment.

Once you've prepared a health care directive for your child, you'll need to sign it to make it legally binding, and in some states, you must also have it witnessed and/or notarized. Learn more about finalizing health care directives.

Notifying Child's School of Custody Transfer or Guardianship

As soon as a custody transfer or guardianship is approved, you or the child's new guardian should notify your child's school. The school will want copies of any custody agreements and/or court orders.

Typically, a school will provide information only to a child's listed guardian, but school officials could refuse to provide the guardian information unless specifically required by the guardianship order. Because of this, you might want to include a section on school notifications and communication in your guardianship order or informal agreement.

Practical Concerns If Immigration Arrest Is Possible

At a more practical level, make sure your children know who to contact if the worst happens and, for example, you don't show up at school to pick them up or they arrive home to an empty house. Emphasize to them that you are currently doing everything in your power to make sure that they'll be cared for if something unexpected happens.

Advise a few trusted friends or family of the situation (including the name of your lawyer), so that they'll be ready to step in and help your children. You might need someone who can pick up your final paycheck and access your bank account. Let them know other key information like where to find your important papers and contact information, what medical conditions your children have and who their doctors are, and so on. Warn them that you are unlikely to be able to maintain regular contact with them; they might have to monitor ICE's Online Detainee Locator System, using your name, date of birth, and country of birth just to find out where you are being held (but the system isn't always up to date).

Then memorize the phone numbers of the key people you would want to contact. Your phone will likely be confiscated, but you might be allowed a phone call from the detention facility.

Consider the Possibility That Your Child Will Be Swept Up in an ICE Arrest

ICE agents aren't always careful about who is included in an arrest, and have been known to arrest or deport children along with their parents. Getting proof of citizenship for your citizen children, such as a U.S. passport, would be a wise protective move. See Obtaining Proof of U.S. Citizenship.

Getting Legal Help

If you're planning to make any of these arrangements, you'd do well to hire a local immigration lawyer as well as a family law or estate planning attorney to review your documents and form a strategy. You can also contact your local bar association to see if there are volunteer attorneys who provide services on a pro bono (free) basis.