This section discusses how parents can protect their rights if they are picked up by U.S. Immigration and Customs Enforcement (“ICE”), separated from their children, and facing time in detention with the possibility of being deported.
Parental rights are the rights that you have as a parent to make decisions about the wellbeing of your children, including who cares for them and who they live with. Remember: even if ICE is trying to deport you, you still have the right to make these decisions for your children. It does not matter if the children are not U.S. citizens—parents still have parental rights.
Even if you are detained, you can still advocate strongly for yourself as the parent of your children, particularly if being reunited with, or at least maintaining a relationship with, your children is your ultimate goal.
Steps Parents Can Take If Detained
If you are detained, you likely will want to
- ensure that your children are taken care of, and
- limit your time in detention.
This section focuses on what parents can do for their children, and does not address how parents can fight their own immigration cases. For that question, you should review a resource specific to that topic and consult with an immigration attorney.
Prepare for a Potential Stop by ICE
In preparation for a potential stop by ICE, regardless of whether your children are with you at the time, you should keep copies or photos of important documentation with them or on your phone that shows you have children, especially if the children are U.S. citizens. Examples of this documentation include:
- The child’s birth certificate on a phone;
- Evidence that the child is a DACA recipient, if applicable; and
- The child’s medical or education records.
Currently, ICE is more likely to release people they have detained if there is evidence that the person is not a flight risk and not a danger to their community. Having kids may show this.
If you are stopped by ICE, regardless of whether your children are with you at the time, it is very important that you inform ICE that:
- You have children who need your care;
- Request not to be detained by ICE, and advise that you will comply with ICE’s requests; and
- You need to make a phone call to a caretaker or other emergency contact to arrange care for your children.
If parents have their children with them when they are detained
If you have your children with you when ICE detains you, you should tell the ICE officers that you need to make a phone call immediately so that a caretaker can come take care of your children before a child welfare agency takes them into custody.
ICE should allow you to make such a call to your designated caretaker or emergency contact so that you can tell that person that (1) you are in ICE custody, and (2) alert that person to follow any emergency plans you have prepared in advance, or follow instructions that you give to them at that time.
If ICE refuses to allow you to make a phone call, you should tell the officer(s) over and over again that you must place a call to arrange plans for your children so that the children are not taken into custody by a child welfare agency. Even if ICE still detains you, you should continue to communicate these things to every ICE officer encountered during your detention.
If children are NOT with their parents when their parents are detained
If children are not with you at the time you are detained by ICE, you should tell the ICE officer(s) immediately that you have children, and that you need to make a phone call to ensure your children are safe and taken care of.
It is likely that you may spend at least a day or maybe a few days in an ICE facility while ICE decides what to do about your case. You may have very limited access to a phone, and ICE may not tell you anything about what will happen to you. If you are not released, you may be taken to an immigration detention center. If this happens, it is still possible but less likely that ICE may release you. At the very least, you may spend anywhere between a few days or multiple weeks in detention.
What Happens if No One Picks Up Children When Their Parents Are Detained?
If you are unable to reach a designated caretaker or some other trusted friend or relative who is able to take care of your children right away, in most states, a state or local child welfare agency will take custody of your children. Each state and many localities (e.g., city or county) have child welfare agencies. These agencies have names like “Child Protective Services,” or the “Department of Children and Families.” You can consult a telephone directory or search on Google to determine which agency may have taken or is seeking to take custody of your children if you are not contacted by the agency directly.
If you are facing detention and have already chosen a caretaker, it is important that the caretaker contact the local agency immediately in order to seek to have the agency place the children in their care. The more time that passes after a parent’s detention, the harder it may be for someone other than the parent to be granted access to care for their children, and the less likely it is that the care of the children will remain a private matter between the parent and a designated caregiver. Therefore, it is important to keep trying to contact a caregiver or other friend/relative until you are able to reach someone.
You should keep in mind that any caretaker, as well as adults living in the same household of the caretaker, may be subject to a criminal background check as well as a check of child abuse registries. Having a past criminal offense could disqualify someone from taking custody of children, even if you have expressly chosen a specific person as a caretaker.
If no caregiver comes forward or is identified, the agency may begin a child welfare proceeding to determine where a child will live.
Child welfare proceedings
Once an agency takes custody of a child, the agency may try to identify a relative or friend willing to take care of the child. However, if an agency has taken a child into custody and cannot locate someone to care for the child, the agency will likely try to place the child in foster care. A foster parent is someone who has been trained and is licensed to care for children whose parents are unavailable or unable to care for them. Sometimes older children may be placed in a group home, which is a home where several older children live together with one or more trained adults who supervise and care for them.
If a child welfare agency takes custody of a child and is unable to find a known caregiver immediately, it will typically file a petition shortly after taking custody of the child. This begins what is called a “neglect proceeding,” or “child welfare proceeding,” although the name can be different depending on what state the child is in.
- The purpose of a neglect proceeding is to determine where a child will live, and it is held before the court (usually a family court or juvenile court), although the process will differ depending on the state it is in.
- As the parent, you may have the right to have an attorney appointed by the court to represent you during the neglect proceeding.
- It is also possible that the child will get an attorney or other form of guardian to represent his or her interests.
- The agency will likely also assign a caseworker, who will report to the judge handling a child’s case about the parent and the child. A caseworker generally has the power to make recommendations about what should happen to a child, so it is important to maintain good relationships with your caseworkers, and frequently communicate, so that the caseworker knows your wishes for the children they represent.
Under different circumstances, the court handling a child’s case would notify the child’s parent of all the hearings, and the parent could participate in the court process. If a parent is detained, courts may issue a “writ” to bring that parent to the court or if there are concerns of security or public safety, make provisions for the parent to participate in the hearing remotely. However, if the court does not know that the parent has been detained, it may not send notice of a court hearing to the correct address. Additionally, it may be difficult to participate in the hearing if a parent is detained in a different state from where the court is located.[1]
Note that the hearing will still take place even if a parent does not receive a notice about the hearing, or if the parent cannot attend the hearing. If a parent misses a hearing, even if the reasons are beyond their control, the court will make a decision about a child without the parent being there to tell the court their wishes. That is why it is important for parents to do everything possible to communicate with the court, caseworker and their attorney, as well as their children, while child welfare proceedings are going on.
Seeing Children While Parents Are Detained
ICE must accommodate regular visits between a parent who is detained and the parent’s minor children. It should not matter if the child does not have a Social Security Number or is not a U.S. Citizen, although adults may have to provide their date of birth and Social Security number, and be approved by ICE prior to the visit. If the parent is detained in a facility where there is not a provision for contact visits by minor children, ICE must arrange for a contact visit between a detained parent and their minor child within the first 30 days of the parent’s detention and if the detained parent requests it. After the first 30 days of a parent’s detention in a facility without a provision for contact visits by minor children, ICE must consider a detained parent’s request for a transfer to a facility that allows contact visits with minor children. If the transfer is not approved, ICE must allow monthly visits between the detained parent and their minor children. If in-person visits between a detained parent and their children are not practicable, ICE may allow virtual or teleconference visits.
However, if there is an ongoing child welfare proceeding, whether or not a child can visit a parent in a detention facility will likely be up to a judge handling the case. The decision may be based on what the judge believes is in the child’s best interests. For instance, for some children, seeing a parent in a detention facility could be difficult. If parents want their children to visit them, they should tell their attorney and/or caseworker, if they have one. Keep in mind that visitation by phone is another option that a court could order. Even if parents cannot visit, they can write letters to their children to keep in touch.
How Parents Who Have Been Detained Can Take Steps to Protect Their Parental Rights
You must play an active role in protecting your rights as a parent, even while you are detained and possibly face deportation. Here are some specific steps that you can take:
Stay involved with your children
It is very important to do everything you can to stay as involved as possible in your children’s lives, including making decisions about any medical or educational issues. It should be clear to everyone involved in your case that you are actively involved in caring for your children, even from detention. You should call your children regularly, as well as write letters to them. Communication with caseworkers is also important, along with making a strong effort to see your children even while detained.
You should let people know where you are
If you are detained, you need to make sure that as many people as possible know where you are and how to contact you. You should make every effort to contact a designated caretaker, relatives, and friends, and be sure to tell such persons to provide your location to any court or agency that may have a role in deciding who gets custody of your children. If a caseworker is assigned to you on behalf of the court, you should make sure the caseworker understands your situation and that you are detained.
Useful information that you can communicate includes:
- Your alien number (“A Number”) that will be assigned to you;
- The name of your deportation officer; and
- The name and location of the facility where you are being detained, along with a phone number to make sure you receive notices about court hearings.
The ICE Online Detainee Locator System may also be used to locate a person currently detained in ICE custody, or who was released from ICE custody for any reason within the last 60 days.
Contact your state or local child welfare agency and verify the location of your children
If you think your children are not with a friend or family member and the children might be in the custody of a state or local agency, you should talk to your deportation officer and ask to contact the agency right away. It can be hard for agencies to locate a parent who is detained, so contacting the agency directly is very important. Many agencies have a hotline that parents can call.
When calling, you should:
- Give your full name and identify yourself as the parent;
- Give all children’s full names and dates of birth;
- Explain that you are in immigration detention and believe that your children may be in the agency’s custody;
- Be clear that this is an emergency situation, and that you need to know if the agency has an open case so they can contact your children right away;
- Give the name and contact information for the children’s designated caretaker, if you have one or, if you do not have a one, then the name and contact information for another trusted friend or relative who you think will be willing and able to take care of your children;
- Give your alien number and the name and address of the detention center where you are located; and
- Find out if a case number is available for your child’s case.
If you cannot call the agency yourself, the designated caretaker or a relative or friend should call on your behalf and provide all the same information described above.
Request a lawyer
You should consider having a lawyer to represent you at hearings during their detention. If you cannot afford a lawyer, you may be able to request that a lawyer be provided for you. The court may ask for information about income and any property you may own. You should be prepared to provide such information. In addition to lawyers provided by the court, you may be able to talk to non‐profit legal aid providers who provide legal services for free.
Once you have a lawyer, you should stay in contact with them. If your lawyer does not answer when you call, you should always leave a message. You should always write down the date and time that you called your lawyer, and note whether you left a message.
You should make sure the officials handling your deportation case know about your custody concerns
You should also tell your deportation officer and the immigration judge overseeing your case that your child is in or may be placed in foster care, and your wishes for how your child should be cared for if you are deported. You should do your best to make sure that the officials handling your deportation case are aware of the situation and that it is documented in the court’s record.
Request an interpreter
If your native language is not English, you can request to be provided with an interpreter at any hearings regarding your children.
You should contact their consulate
Your consulate may be able to provide you with information or possibly advocate on your behalf.
[1] According to U.S. Immigration and Customs Enforcement Fact Sheet for Child Welfare & Guardianship Stakeholders: The Parental Interests Directive (PID) allows Covered Individuals to make in-person appearances in family court or child welfare proceedings when required to maintain or regain custody of minor child(ren) or incapacitated adult(s) (dependents). If transport presents security and/or public safety concerns, or negatively impacts mission needs, facility staff will identify alternative means of participation, such as telephonic or video or standard teleconferencing, when technologically feasible. In addition to court participation, ICE will facilitate remote participation in court or child welfare mandated services, programs, or trainings.