As undocumented immigrants found during the Trump administration, 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 U.S. are potentially subject to ICE arrest and deportation. Although the Biden Administration has shifted course, such that criminals and people who are threats to public safety are the first priority for removal, one can never count on avoiding an ICE arrest.
Many immigrants facing possible removal are parents of young children who were born in the United States. If these parent(s) are detained, jailed, and/or deported, their children could end up relegated to the foster care system. With some careful planning, however, parents can make specific arrangements to ensure their children will be cared for in the event of deportation.
The best way to protect your 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.
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.
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 and submit it to court. A court 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 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 you're able to return to the United States.
Another way to protect your child 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 provides an informal guardianship form you can use to appoint another adult to care for you 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 U.S. 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're able to return to the U.S. and want to regain legal rights to your child, you'll 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.
Parents have the right to make health care decisions for their children, but 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 away, 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. Nolo publishes a self-help guide for finalizing health care directives.
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.
If you're planning to make any of these arrangements, you'd do well to hire a local family law or estate planning attorney to review your documents. You can also contact your local bar association to see if there are volunteer attorneys who provide services on a pro bono (free) basis.