Custody & Related Legal Issues for Children of Arrested or Deported Foreign Nationals

If a foreign national has been arrested by ICE, or if they are likely to be removed from the U.S., they may be concerned about the fate of any child who was born in the U.S. The child holds U.S. citizenship automatically by being born on U.S. soil, so they will not need to leave the country with the foreign national. If their parent leaves for their home country or spends an extended period in jail or immigration detention, a child might be at risk of being transferred into the foster care system. This is rarely a positive outcome for a child, so many foreign national parents will want to set up a custody arrangement or guardianship for their child while they are unable to care for them.

These arrangements involve the areas of family law and estate planning more than immigration law. If you need to assign custody rights to someone else or determine a guardian for your child, you may want to consult a lawyer in those areas. They can make sure that you meet the legal requirements of the process that you choose. Once you have set up a new arrangement for your child’s care, you will need to notify their school so that it knows the adult with whom it should communicate regarding the child.

Custody Transfers

Transferring your right to physical and legal custody over your child to another adult is a major decision that can cause complications down the road. The custody agreement will allow this person to live with your child, pay for supporting them, and make key decisions in areas such as their health care, education, and religious affiliation. You cannot unilaterally transfer custody to someone else if the child has another parent with some custody rights. If the other parent does not agree to the transfer of custody, you would need to go to court and get an order from a judge. Otherwise, if the other parent consents or if there is no other parent, you can present the court with a signed and notarized custody agreement. The judge should approve it after a hearing if they find that the custody arrangement is in the child’s best interests.

You would need to go to court again if you want to alter or reverse a custody agreement later. The judge again would make their decision based on the child’s best interests. Sometimes you can state in a custody agreement that the transfer will last only while you have been deported from the U.S. This will not require the judge to transfer custody back to you automatically, but it may help your position if you try to regain custody later.

Guardianships

While a custody transfer can be a permanent solution, a guardianship can be temporary and offers more flexibility. You do not need to get a judge to approve an informal guardianship agreement. This simply involves completing a form on which you designate another adult to handle your child’s care and make decisions in the same areas that are covered by legal custody. Informal guardianship agreements should be notarized to persuade other parties to respect the guardian’s rights.

Instead of an informal guardianship, some parents prefer to arrange a court-ordered guardianship. This requires filing a petition in court, and usually both the parent and the prospective guardian must provide declarations stating that they agree to the guardianship. (Sometimes a guardian can be appointed without parental consent if the parent is unavailable, such as when they have been deported already, but usually it makes more sense to set up a guardianship before you leave the U.S.)

If you are not able to resume caring for your child when the temporary guardianship expires, it likely will need to be converted into a permanent guardianship. This means that the guardian will be responsible for the child’s care until the child turns 18 or until the court orders the end of the guardianship. A guardian must provide food, shelter, education, and health care to the child. Sometimes a parent will choose to retain certain decision-making responsibilities. You can undo a permanent guardianship if you return to the U.S. and can show that you are ready to resume caring for the child.

Health Care Directives

A health care directive is an estate planning instrument that designates another adult to make decisions regarding your child’s medical care. It also can provide specific instructions for the treatment (or lack of treatment) that your child should receive if an emergency arises. You can determine whether your child should receive surgery, transfusions, intravenous feeding, or artificial respiration.

Outside the emergency context, a health care directive can be useful for a child who has a chronic illness or special needs. It can require the guardian of the child to make sure that they regularly see a specialist for their illness and get the treatment that they need. As with other family law and estate planning documents, a health care directive must meet legal formalities to be found valid, such as being signed and possibly notarized.

Last reviewed October 2024