You may have to decide whether to bring your children to your home country or to leave the children in the United States. This is a difficult decision, and the outcome may depend on several factors, including who has custody of the children and, if more than one person has custody, whether they agree on where the child should live.
Bringing a Child with You Upon Deportation
Many factors affect whether a parent can bring a child with them upon deportation. First and foremost, if a parent is in detention and wishes to bring a child with them after deportation, they should make sure the deportation officer and immigration judge know this. The parent’s next steps depend on whether the child is in foster care or under the custody of another person and whether the child has appropriate documentation to travel.
Foster care
If your child is in foster care, read the section above on “Child Welfare Proceedings.” You should make sure that the family court judge, case worker, child’s case worker and any other official or attorney involved in the child welfare case or any immigration case knows that you wish to bring your child with you upon deportation. You should also ask to be reunited with your child at the airport before leaving the country.
Shared custody or visitation rights
If you share legal custody of the child, your ability to bring the child out of the United States may depend on whether you can obtain either the other parent’s or a court’s permission. If the other parent agrees that the child can go with you, both parents should consider writing this agreement down and notarizing your signatures. You should keep a copy of this written document in a safe place and take the letter with you while traveling.
If the other parent does not want the child to leave the United States, you may need to get a court order allowing the child to be taken out of the country. Since the likely outcome of the case will depend on many factors, you should contact a family law attorney for help.
Children traveling on airlines
Some airlines require special documentation for a minor child traveling with only one custodial parent. You should contact the airline for details on what may be needed to travel alone with the child. You may need to show one of the following:
- a notarized letter of permission from the child’s other parent;
- a court order showing that you are the sole custodian; or
- the child’s birth certificate showing that you are the sole custodian.
In addition, if you are travelling internationally, you will need to show the child’s passport. (For information on how to obtain a child’s passport, please read the “Child’s Passport” section above.) If the child was born in the U.S., you should make sure that the child has important documents like a birth certificate, social security card and passport before leaving the country with your child. The destination country may impose additional requirements. A list of embassies and entry requirements can be obtained through the Department of State website or by calling the embassy in question. Contact information for U.S. Embassies is available here: https://www.usembassy.gov/.
Note: An airline’s documentation requirements for minor children also apply if the child is travelling with a guardian. In addition to the child’s identification documents, the guardian will likely need to show either: (a) a court order granting that person legal guardianship; or (b) a notarized letter signed by the parents that give the guardian permission to travel with the child, often referred to as a “parental consent letter.” The U.S. Customs and Border Protection Agency recommends that a parental consent letter is in English and notarized, is less than one-year old, and includes the following information:
- Who
- What
- Where
- When
- Why
- Contact information for the absent parent(s)
Whether a child is allowed to travel alone depends on the child’s age and the airline. Under no circumstance can a child under the age of five travel alone. For children between the ages of five and eighteen, contact the airline for details on the airline’s rules regarding child passengers. The child may be able to fly alone only on certain flights, under certain circumstances, if they have a notarized letter from the child’s legal custodian.
Reuniting child with deported parent after deportation
If you obtained a temporary guardian for your child before deportation, the guardian may be able to assist the child with obtaining the necessary paperwork to travel out of the country and meet you. For more information on temporary guardians and their ability to act as a legal custodian, please read the “What is a Temporary Guardian?” section above. However, the temporary guardian may have no obligation to do so if they choose not to assist the child in relocating.
Keeping the Child in the U.S. when a Parent is Deported
Minor children need a legal custodian to make decisions on matters such as medical care, education and travel decisions. For this reason, a parent facing deportation that wants his or her child to stay in the U.S. should seek to have a guardian or other legal custodian appointed for the child.
Changing custody of a child after a custodial parent is deported
If a parent wants to change a custody order after deportation, they may need to go through the U.S. court system. If both parents are outside of the United States, someone inside the country could petition to be appointed as guardian, and the absent parent(s) could consent. If only one parent is outside of the United States, they can agree to give custody to the other parent in the United States. To do so, the parent in the United States can file a modification action with the court, and the absent parent can then consent to the modification action from outside of the United States.
Emancipation of an older child
Some states also permit older children (generally over the age of 16) to become emancipated. An emancipated child has the right to make their own decisions about education, medical treatment, travel, and legal matters—i.e., the decisions that a parent or guardian would otherwise make until the child becomes an adult. Thus, emancipation may provide a way for an older child to live on their own, rather than in state custody, upon the detention or deportation of the child’s parents. To become emancipated, a child may need to file a petition in family court that explains why emancipation is in their best interest and shows they are financially independent. Because emancipation will generally terminate parental rights, the parents and child should consider this option carefully. They should also consider talking to an attorney, as the law and process for emancipation varies from state to state.