If you believe you are at risk of being detained or deported by immigration officials or otherwise separated from your children for an uncertain period of time for another reason (e.g., arrest, medical incapacity), establishing a plan to have someone care for your child early will allow you to preserve parental rights where possible and prevent the children from entering foster care.
Because parental rights may be very limited once you are detained or deported, it is best to establish these plans in advance and carefully discuss them with your children, your spouse, other parents, relatives, and any other people who may be involved in caring for your children in your absence.
Parents at risk for detention, deportation, or other sudden separation from their children may take the following preparatory steps.
1. Identify people who will take care of the children
If you may be detained, deported, or otherwise unable to take care of your children, it is important to find a person that you trust to act as a caretaker that can take on the responsibility of caring for the children.
You should first identify people who may currently have legal custody. As explained above, where parents share joint custody of the children, the other parent can step in to make legal decisions for a child, especially if they are not at risk of detention/deportation.
If another parent or person with legal custody is unable to take care of your child, or such person does not exist, you should identify another caretaker. Depending on the state, the caretaker may not need to have valid immigration status of the caretaker’s own to serve as your child’s guardian or custodian. Always check state-specific forms and guidelines, as these policies may be subject to change.
Tip: You should be sure that the designated caretaker is someone you fully trust. You should also be sure to carefully consider and discuss various points when choosing a caretaker, such as the person’s physical and financial capacity to care for children over a long and indefinite amount of time, other people in the household that will have regular contact with the children, and any special medical or other needs the children might have.
2. Prepare temporary guardianship arrangements, if applicable
Formalizing caretaker and temporary guardianship arrangements will grant the other person the proper legal authority to quickly step in and act on behalf of your children. Verbal agreements usually are not enough to grant another person legal authority to make certain decisions for your child.
Tip: A caregiver who already is the child’s legal guardian does not need to seek legal custody through the courts, but should always determine how to exercise his or her existing rights as a legal guardian.
Other Reasons to Formalize Guardianship Plans Include the Following:
- Some health insurance companies will not insure a child that is living with a caretaker who is not the child’s parent or legal guardian;
- Many schools require that a child enroll through the child’s parent or legal guardian or their current caregiver. The current caregiver could enroll the child in school if the child would be homeless if they did not live with the current caregiver (some states permit the use of a “school affidavit,” which allows another person to enroll the child in school);
- A caregiver generally cannot obtain medical care for a child without the signature of the child’s parent or legal guardian or a court order;
- A child may not obtain a U.S. passport without the consent of the child’s parents or legal guardian; and
- Courts may decline to grant legal guardian status to someone other than a parent without some indication that the parents desire to grant guardianship power to others.
What is a Temporary Guardian and How Can a Temporary Guardian Care for Someone’s Children?
If a detained individual is the sole custodian of a child, or if the non‐detained custodian is also unable to care for the child, he or she should consider appointing a “temporary” guardian to temporarily care for the child if permitted by the state in which the child resides. Temporary guardianship is a legal arrangement that grants an individual the authority to care for a child for a limited period of time when the child’s parents are unable to do so. The person appointed as a temporary guardian should be a person that the parent completely trusts to care for the child.
An individual may appoint a guardian by filling out and notarizing the applicable guardian designation form for that state, where the state permits it. This document authorizes who may care for the child and make important decisions for the child, such as:
- Decisions about medical and dental care;
- Decisions about education and any special needs; and
- Decisions about travel.
The name of the form and information needed to complete a temporary guardianship varies by state. In some states, it is possible to place the designation of guardian on file with the court. For example, in Florida, parents may sign a written statement in which they name a “preneed” guardian for their child. The parents then file the statement with the court for the county in which they reside. If something happens to the parents and the child needs a guardian, the court will pull the parents’ statement from the court’s files and consider it in the guardianship proceeding. The parents’ statement is considered a “rebuttable presumption” that the person named in the statement should be the guardian. This means that the court would assume and appoint that person as guardian unless it was proven otherwise and that the person is not qualified to be the guardian.
Completing guardianship forms may be different from the court custody process, depending on the state law. Depending on the state, notarized guardianship forms may or may not be legally binding. The legal weight given to a notarized guardianship form is determined on a state-by-state basis, so the guardianship may or may not be recognized if a child is taken to another state.
In states that do not recognize the parents’ ability to designate a temporary guardian for the child, parents who want to grant legal rights to the caregiver in advance of their detention/deportation will need to consider other options. These options could include seeking to have the caregiver granted custodial rights by filing a petition for custody which the parent can support. Parents should weigh their options carefully and consult with local legal assistance because granting custodial rights to another person in anticipation of deportation may cause parents to lose legal rights over their children if they are not deported.
A court is not required to honor any temporary guardian form if it becomes necessary to appoint a permanent guardian for the child. Although the temporary guardian form is one factor the court generally will consider where recognized, the court’s final decision will be based on the child’s best interests. Accordingly, a parent should think carefully about whom to name as guardian in the document. Selecting someone a court will consider fit to care for the child will increase the chances that the court will follow the parent’s request.
Custody Orders and Consent Decrees
When planning for potential deportation, you should also review any existing child custody orders to determine whether any changes need to be made. Because the process of changing custody orders can take months, you should consider starting that process as soon as possible, if appropriate.
You may also consider obtaining custody consent decrees from a court or appropriate authority in advance where recognized by state law. Typically, the custody consent decree gives physical custody to the caregiver but allows parents to retain legal custody of the children. It may also establish visitation arrangements.
As with any process that involves the courts, many undocumented parents may be reluctant to attend court proceedings. This may limit their ability to provide legal protection to their children and their caregiver in advance in states which do not recognize informal arrangements, such as privately prepared guardianship designations.
Other potential challenges that could arise when planning child custody arrangements include documents that require the signature of both parents. You should also keep in mind that granting someone other than the parent custody of the child gives the custodian in loco parentis (in place of the parent) standing. This means that the custodian of the child has standing to petition for custody or to oppose custody challenges that may arise in the future. So if the custodian does not agree to return the child to the parent or does not agree to enter into a new custody agreement, a court will decide who has custody. It is advisable to consult with a lawyer before entering into any custody agreements.
Formal custody arrangements, as explained above, may be made after a person is detained or ordered deported. After you are detained or deported, caregivers, guardians or others with standing can file for legal and/or physical custody of your children. Going through formal custody proceedings in advance of detention or deportation may cause you to lose certain parental rights unnecessarily, but it may be the only way to ensure that a caregiver is designated in advance and has legal authorization to care for and make necessary decisions for your children. Therefore, you should carefully consider your options and consult state-specific information before making any decisions that would involve the potential to diminish their parental rights.
Caregiver Authorization Affidavit
You also may consider naming a caregiver for your children using a Caregiver Authorization Affidavit. A Caregiver Authorization Affidavit is a form which allows you to name a caregiver and to grant that caregiver the ability to make healthcare and education decisions on the child’s behalf when you are not present. A Caregiver Authorization Affidavit does not give the caregiver legal custody of your child and it does not affect your parental rights—the parents maintain custody and control of the child. A Caregiver Authorization Affidavit is not enforceable by a court and does not need to be filed with a court. However, a Caregiver Authorization Affidavit does need to be filed with the child’s school, medical providers, or institutions where the caregiver is authorized to make decisions. The procedures for these affidavits vary by state, education district, and medical provider.
Important Legal Documents and Other Papers
It is important to be organized and to know where to find all legal documents relevant to the care of a child and to make sure all documents are up to date.
Tip: Families should keep all legal documents and any other important papers in a safe location. Parents and custodians should also inform others, including older children, of where to find the documents in case they are detained or otherwise unable to care for the child.
Tip: Parents and custodians should keep all original copies of all documents and only provide copies to immigration officials.
The following are examples of essential legal documents to prepare or gather, with more information on each type of document below:
- Child’s birth certificate and social security card;
- Child’s passport;
- Emergency contact forms;
- Current custody orders, guardian designations, and other
consent/authorization forms; - Last will and testament with guardian provisions; and
- Child’s school and medical records.
Child’s birth certificate and social security card
If your child was born in the United States, they should have a U.S. birth certificate and a social security card. Instructions on how to obtain a birth certificate can be found at:
https://www.cdc.gov/nchs/w2w/index.htm.
Social security card applications can be found at:
www.ssa.gov/online/ss-5.pdf
Tip: You should review your child’s birth certificate to make sure that all the information is correct and nothing is missing. Whoever is named on a birth certificate is assumed to have custodial rights in many states. Therefore, if you are at risk for getting detained and you are the only parent listed on the birth certificate, you should consider amending the birth certificate to add the name of the other parent, if applicable. This process is simpler and likely less expensive than having custody determined through court orders.
Child’s passport
If your child is not a U.S. citizen and does not have a passport, you can contact the consulate of the country where the child is a citizen to determine how to apply for a passport for the child.
If your child was born in the United States and does not have a valid U.S. passport, you should consider obtaining one for them as soon as possible. If you are deported and choose to have your child remain in the United States, they will need a passport to visit you in your home county.
Passport applications for minors are available at:
http://travel.state.gov/passport/get/minors/minors_834.html.
Keep in mind, the U.S. Passport office has strict rules for who may and may not get passports for minor children. The passport application for a minor child must be submitted at a U.S. Post Office by both parents of the minor child. The only exceptions are:
- if there is only one parent named on the child’s birth certificate,
- if there is a court order granting sole legal and physical custody to one parent,
- if the parent has a special notarized letter, called a “Notarized Statement of Consent or Special Circumstances” (DS‐3053), from the other parent who consents to getting a passport for the child,
- if one of the child’s parents has died, or
- if there is a court order naming a legal guardian for the child.
During the application process, you will be asked to show proof that the child is a U.S. citizen, which can be shown by presenting the child’s U.S. birth certificate. You must also present proof that you are the custodian of the child either by presenting the child’s U.S. birth certificate or a court custody order.
If one parent has died, the surviving parent may present the death certificate to show that he or she is now the sole custodian of the child. The surviving parent will also be asked to provide his or her own valid picture identification.
Tip: Child passport applications must be completed in person. If you try to obtain a passport for your child while detained, you must complete and notarize the Notarized Statement of Consent or Special Circumstances (DS-3053) form, available here:
http://travel.state.gov/passport/forms/ds3053/ds3053_846.html.
If a detained parent does not have sole custody and the other non-detained parent is unavailable, the non-detained parent must also fill out the DC-3053. If a non-detained parent is available, he/she can accompany the child to apply for a passport with the notarized DS-3053 form. The detained parent does not have sole custody of the child when the non‐detained parent is named on the child’s birth certificate or was granted legal or physical custody by a court order.
Many countries allow children born in the U.S. to have dual citizenship, which may make it easier for the children to travel between the U.S. and the country of the deported parent. You can contact the consulate of their home country for more information.
Current custody orders and guardian designations
As discussed above, you may be able to sign a form that names someone to serve as the temporary guardian of the child if you are unable to care for them. If you sign this form, you should keep the original with the other important papers. You should also give a copy of the form to the person named in the document as the temporary guardian.
Last Will and Testament with guardian provisions
Although the focus of this chapter has been on child custody issues arising during a deportation proceeding, it is also extremely important that you plan for the care of your child upon your death. This is essential if the non‐detained parent is not alive or has no custody rights.
In a Last Will and Testament, an individual says who should receive his or her property upon death. A Last Will and Testament may also name someone to care for any minor children upon the parent’s death. If an individual is married and shares physical custody with a spouse, the guardian named in the Will does not take care of the children unless both spouses have died. Alternatively, if an individual is the sole custodian, the guardian may be able to take over care of the children as soon as the individual passes away.
After the parent’s death, the person named as guardian in the Will may need to petition the appropriate court to be formally appointed as guardian. The Will may serve as a guide for the court as it decides who should be appointed as the child’s guardian. However, the court’s final decision typically will be based on the best interests of the child. The requirements for a valid Will vary on a state‐by‐state basis; therefore, it is advisable to consult with a lawyer to make sure that the document is prepared properly.
Standby Guardianships and Power of Attorney
Where permitted, parents may also choose to grant another person a power of attorney or standby guardianship. These agreements allow another person to care for children and make medical or school decisions only when a specific event takes place in the future (e.g., detention or deportation). The procedures needed to establish a power of attorney or standby guardianship vary by state. Once granted, powers of attorney or standby guardianships may be revoked at any time by the parent, where permitted by state law.
Emergency contacts
You should prepare an emergency contact list that includes multiple ways to contact critical family members, schools, childcare and healthcare providers, coaches (etc.) and the family’s support network. Share the list with key contacts and keep one with you.
Medical and school records
Keep each child’s medical and current school records organized and accessible for your emergency contacts. Be sure to include contact information for all medical, dental, and behavioral health care providers – including counselors and specialists. Request a current immunization record from your pediatrician and clearly document any current medications, allergies and treatment plans for each child. Note the location of current medications and be sure that they are clearly labeled with the correct frequency and dosage. If your child has supplemental services, individualized education plans (IEPs) or accommodations plans (504s) at school, gather the most current copies in one place.
In general:
- Discuss custody plans to prepare entire family; and
- Seek additional legal or other help where needed.