Children of deported immigrants can be taken into custody by the state if you do not have a guardian appointed. If you are an immigrant, your children’s future depends on whether you have a legal plan in place in case. A guardianship plan or custodial power of attorney can ensure your children receive care and support from a trusted party. Without a legal guardianship in place, your children could be taken into custody and removed from people they know and trust.
An immigrant guardianship attorney can help you establish a plan to protect your minor children in the event of deportation or detainment.
Without a Plan in Place, There Are Immediate Risks to Children
Children experience many adverse mental and emotional health effects if their parents are deported. When they are left without an appointed guardian, these risks increase. Without a guardianship plan, children may face:
State Custody and Foster Care
If you do not have a legal guardian established before your deportation, the state may take your child into custody through state protective services until a suitable guardian can be found. Some states will place children with close relatives. However, if no relatives are available to care for the children, the children may be placed in foster care with strangers.
Long-Term Separation
Detainment or deportation can lead to long-term separation and possible loss of custody. Some states consider children abandoned if the parents are not present for more than a specific period of time, even if you have been deported. Without a custodial arrangement, your children may have a guardian appointed by family court.
While you undergo deportation proceedings, your children’s custody case is heard in family court, and the judge decides where to send them. If you receive a permanent deportation order, you may have to decide whether to bring your children with you or leave them in the U.S.
Trouble Reestablishing Parental Rights
If you are deported ahead of your children, you may have to prove that it is in your child’s best interests to be reunited with you. For instance, deported immigrants who initially fled dangerous conditions in their countries of origin may be difficult to regain custody after deportation.
Even with a safely established location, regaining guardianship can be a long, difficult process. You must often work with state and U.S. government agencies as well as agents of the country where you reside. An established guardianship or custodial plan can help you avoid unnecessary stress during an already stressful time.
Legal Guardianship Protects Your Children
Understandably, your children’s safety and security are your primary concern. Naming a guardian in advance ensures your children stay with someone you trust. With appropriate guardianship paperwork, you can reduce the time and stress of going through the family court system. You also avoid having your children placed with strangers in foster care.
Guardianship documents provide clear instructions to the court and social services about who you want to care for your children and manage their affairs in your absence.
Temporary and Permanent Guardianship
Depending on your circumstances, you can opt for permanent or temporary guardianship. Permanent guardianship allows the guardian to provide long-term care for your minor children in the event you are deported. Temporary guardianship allows for support and care for your children if you are absent for a limited time, such as for short-term detention.
Terms for temporary and permanent guardianship vary between states, so you benefit from working with a lawyer familiar with the immigration and guardianship laws in your area.
Your Child’s Citizenship or Immigration Status Affects Their Future
When you are facing deportation or detention, your children’s citizenship or immigration status affects the options for placement and guardianship.
U.S.-born children are considered citizens under the 14th Amendment, which gives them the right to remain in the U.S. Non-citizen children could face more complications, depending on their status.
Options for Children Born in the U.S.
If your child was born in the United States, even if you were not documented, they have a right to remain in the U.S. If you are begin deported, you may opt to take your child with you or make plans to let them stay in the U.S. with a guardian.
Your child’s legal guardian must be:
- A U.S. citizen or legal resident
- Over the age of 18
- Not legally disabled
- Of sound mind
- Free of felony convictions that involve harming children
Some children remain with an older sibling, relative, or family friend. As the child’s legal guardian, they will be responsible for your child’s care, education, health, and all other parental obligations in your absence.
Options for Non-Citizen Children
Children in the U.S. who are foreign-born to an undocumented immigrant may have trouble establishing legal status as adults, especially if their parents do not have legal status.
They may have the option to apply for Deferred Action for Childhood Arrival (DACA) status, which allows them to get work permits and live in the U.S. while undergoing the process to become a legal resident or citizen. The program requirements and availability change frequently, and there may be other options available for foreign-born children to remain in the U.S.
To find out which legal options are available for your children, consult with a knowledgeable immigration lawyer. Sound advice can help you plan for your children to stay in the U.S. or relocate abroad with you or a trusted guardian.
Your Options as a Parent
Whether you are undocumented, a visa holder, or a permanent resident, you have several legal options to protect and care for your children in the event of your detention or detainment.
Appoint a Temporary or Short-Term Guardian
Temporary guardianship establishes a trusted person to care for your children if you are detained or deported. It allows the appointed guardian to handle day-to-day decisions, essential needs, education, and medical care until you can resume your parental duties.
You typically use short-term guardianship when you plan to be away from your child for less than a year. Temporary guardianship automatically reverts back to you, the parent, upon the date or event specified in the guardianship documents. For instance, your documents may specify that you regain parental rights and duties as soon as you are released from detention.
Create a Permanent Guardianship
Permanent guardianship, also called plenary guardianship, appoints someone to care for your children on a long-term or permanent basis. This allows the guardian to care for your child and make appropriate decisions until they reach the age of majority or a court allows you to terminate the guardianship. It can be difficult to end a plenary guardianship, so you benefit from consulting with a knowledgeable immigration attorney before you move forward.
Establish a Trust for Your Children
Set up a trust or other legal protection to ensure your children receive the resources they need during your absence. A trust allows you to ensure that the assets or property you allocate to your children will be distributed to the appropriate them in accordance with your wishes. A trust can keep your property and assets safe while providing critical financial support to your children, no matter where they live.
Have Your Children Join You
If you can safely do so, you may decide to take your children with you or have them join you in another country. If you are not present to move them, you may use temporary guardianship or custodial power of attorney granting permission to a trusted individual to help them relocate.
Have Your Children Join a Guardian Abroad
If you have trusted family or friends abroad, you may decide to relocate your children to join a guardian in another country. This option may be ideal if you are not safe in the country to which you are deported and you do not want your children to remain in the U.S. Relocating your children to another country may require working with the laws of the U.S. government, your country of origin, and the destination country.
Before you establish any form of guardianship, consult with a legal professional with experience handling immigration and guardianship matters in the appropriate countries.
Set Your Mind at Ease With the Help of a Guardianship Lawyer
Ensure the safety of your children by creating a guardianship plan that places them in the care of a trusted individual. Don’t wait until you are already facing deportation or detainment – establish a plan with the assistance of a guardianship attorney near you.
Lake Legal Services offers confidential consultations to help you find an attorney that suits your specific needs. From urgent legal matters to bilingual assistance, you can trust our associated attorneys to provide the assistance you need.
Schedule a confidential consultation with our team to connect with a lawyer, create a guardianship plan, and protect your family’s future.
