The following provides specific considerations for protecting certain common assets. This is not an exhaustive list, and you should make an inventory of all possible assets, not just those listed below, and attempt to determine how each asset will be handled if you are deported. If possible, you should consult an attorney for guidance on state-specific property laws.
Personal Property
Your child may acquire other valuable personal property, such as jewelry, computers, electronics, and other consumer products. Legally, this type of property is typically owned by you as the child’s parent or guardian. Although personal property may be owned by a minor in some circumstances, a minor generally is not old enough to enter into legal contracts relating to the property or to exercise all of the rights associated with owning the property. The UTMA allows transfer of most all personal property to a custodian for the benefit of the child. When considering what property to include in a transfer under the UTMA or in connection with the creation of a trust, you should think broadly about all assets and personal property including cell phones and gifts, payroll, or other prepaid cards. Property not described will not be transferred.
Bank Accounts
Banks and other financial institutions (such as credit unions) may be chartered under state or federal law. Accordingly, laws regarding account ownership vary among financial institutions. Generally speaking, however, if you are a joint account holder with your citizen child and you face deportation, you should consider modifying the account or transferring the funds to an account that allows another trusted adult to serve as a custodian. The institution will likely have a special form used to adjust ownership.
In many instances, bank accounts for minors reflect the UTMA. Accounts are held by “(the adult) as custodian for (the minor) under the (applicable state) Uniform Transfers to Minors Act.” Once opened, the account immediately becomes the property of the minor and cannot be undone. The account is automatically transferred to the minor upon reaching adulthood, and a custodian may use the proceeds of the account only for the benefit of the minor.
Credit Cards
Generally, U.S. credit card companies do not issue credit cards to minors as primary account holders. However, credit card companies may issue credit cards to minors as authorized users on an adult’s account, when the adult is responsible for paying all debts incurred on the account. Transfer of the account is likely prohibited by the adult’s cardmember agreement. If you are deported, your child’s continued use of your credit card can have negative consequences if any incurred debts are not paid. If you want your child to have access to credit, they should become an authorized user on your account (if keeping your credit card account open) or the account of another adult. See Chapter 5 on Credit Cards, Prepaid Cards, and Debit Cards for more information on what to do with your credit card account if deported.
Motor Vehicles
State laws vary on the age at which a person can legally own a motor vehicle. Generally, a minor cannot be the sole owner. Some states allow minors to register a car at the age of 16, while others require a parent or guardian to sign (e.g., the registration or car loan) on behalf of a minor. Insurance companies may also restrict when a minor may qualify for insurance coverage. If you are facing deportation and are currently the co‐signer on your child’s car registration, car loan, or insurance policy, you should have a different adult serve as the adult co‐signer.
Real Property (Land, House, or Condo)
Ownership of land, a house, or a condominium is governed by state law. In many states, a minor may own this property but cannot directly purchase, sell or make contracts relating to the property—this must be done indirectly through a trust, guardianship or conservatorship. If you are facing deportation and are the trustee, guardian, or conservator of your child’s property, you should consider transferring the title to another adult for the benefit of the minor.
Lawsuit Settlements, Investment, and Inheritance
If a minor is the recipient of property or money from a legal judgment, a guardian or conservator is usually appointed to receive and manage those assets on behalf of the minor. Similarly, minors generally cannot own or manage stocks, bonds, mutual funds, annuities, life insurance policies, patents, or royalties. If a minor receives property or money due to inheritance, the assets will either be placed in trust (for the benefit of the minor) or a court may supervise the administration of the assets. If you are facing deportation and are the guardian or conservator for any of these assets on behalf of your child, you should appoint a new guardian or conservator to assume that role.
Child Support and Custody Orders
Family courts—which deal with issues such as divorce, custody, and child support—operate separately from immigration courts. In most cases, there is no communication between family and immigration courts. Therefore, a family court order will not automatically be modified upon a parent’s deportation. If a family court order will be affected by deportation—including custody or child support—you must petition the court that created the order for modification. Child custody and related issues are discussed in more detail in Chapter 1 of this guide.
Maintenance of child support payments can be a complicated problem depending on whether the obligee (person receiving money) or obligor (person owing money) is deported, whether the citizen child accompanies the deported parent, and whether the destination country recognizes a foreign child support order.
If you are receiving child support and face deportation, and your citizen child will remain in the U.S., you should immediately petition the family court for modification of the order to ensure that your child will continue to receive support through a new guardian. If you have full custody of your citizen child and want them to accompany you outside of the U.S., you must typically receive permission from the court.
Numerous countries have reciprocal child support agreements with the United States, including: Australia, Brazil, Canada, Czech Republic, Ecuador, El Salvador, Finland, Honduras, Hungary, Ireland, Israel, Netherlands, Nicaragua, Norway, Philippines, Poland, Portugal, Slovak Republic, Switzerland, and The United Kingdom of Great Britain and Northern Ireland. If a parent owing child support money is deported to one of these countries, a U.S. child support order can be enforced in the foreign court. Also, if the child lives in one of these countries, the foreign court may issue an order enforceable against a parent owing child support money who remains in the U.S.
Education Savings Plans
An education savings plan is different from a regular bank account set up for saving for school. Depending on the type of plan, special transfer rules may apply.
Education Savings Accounts (ESAs)
An Education Savings Account, also called a Coverdell Education Savings Account, is considered an asset of the minor’s parent or guardian. For a minor leaving the country with the deported parent, the account may generally be “liquidated” – that is, turned to cash – if this is not specifically prohibited by the account creation conditions, but penalties or taxes may be owed. The funds may be used for non‐educational purposes, but there may be an associated penalty. For a minor child remaining in the country, care should be taken to ensure that a remaining parent or guardian is aware of the account. A financial consultant from the firm hosting the account should be able to ensure a smooth transition of account control.
529 Savings Plans
In contrast to the Coverdell ESA, a 529 plan remains in the control of the party creating the account. Because of this, the funds may not be considered an asset of either the minor or the minor’s guardian, and the funds may become unavailable to the minor unexpectedly if the controlling party decides to remove them or change the beneficiary of the 529 plan. If a 529 plan designating the minor exists, a parent facing deportation or another parent or guardian may wish to discuss the minor’s future educational plans with the party who created the 529 savings plan. If it is the parent being deported who created the 529 plan, such parent may wish to name a successor owner of the plan, recognizing that the successor owner has the ability to redirect the funds away from the minor. This may allow the minor to know if they may rely on the funds in the future despite any changed circumstances.
Government Benefits
A citizen child may be receiving benefits, grants, or financial aid from federal, state, county, and/or local governmental programs. Eligibility for these programs might be adversely affected by the deportation of a parent or guardian. Parents who are immigrants should investigate whether eligibility for the programs is conditional and whether action is necessary to maintain eligibility upon the parent’s deportation. Parents should also investigate whether their citizen child may qualify for assistance through other programs, including those that provide benefits to “unaccompanied” youths or minors. Where possible, a description for obtaining or maintaining these benefits should be provided to the citizen child and/or a guardian or custodian. A guardian may need to apply to become a representative payee of a minor.