This is why the changing trends in immigration enforcement in the United States are worrying for undocumented immigrants and their families. Many undocumented residents, especially those who can have children, fear being arrested or deported by ICE. This child custody planning guide will address the questions that come up if you are detained or deported by ICE and suggest ways to secure a good custody arrangement for your child in the future.
The Shifting Landscape of Immigration Enforcement
The immigrant living in the United States without documents is characterized as a criminal and therefore stands a chance of being arrested by ICE. Thus, although the Biden Administration has endeavored to ensure that anyone who had faced criminal charges or is considered dangerous to society would be deported first, there can be no certainty as to how to avoid an ICE arrest.
Even individuals with green cards, signifying lawful permanent residence, can find themselves facing deportation proceedings, often triggered by criminal convictions. The uncertainty and anxiety surrounding potential ICE actions make it crucial for undocumented parents to plan for their children’s welfare.
Making Child Custody Arrangements in Advance of Deportation
Custody Transfer: A Preemptive Measure
The most effective way to safeguard your U.S. citizen child from entering the foster care system is through careful planning and proactive custody arrangements. These arrangements can be initiated before any deportation concerns arise. Here’s how you can go about it:
Voluntary Custody Transfer Agreement:
Start by creating a voluntary, written agreement to transfer your physical and legal custody rights to a trusted adult. This agreement empowers the new custodian to make decisions regarding your child’s health, education, and general welfare. It’s important to note that both parents must consent to this transfer. If the other parent shares custodial rights, their written consent is necessary. In case of objections, legal proceedings may be required, culminating in a judge’s decision on custody.
Legal Formalities:
If both parents agree or if you are the sole legal parent, sign the agreement in the presence of a notary public. This notarization ensures the document’s authenticity and validity. Submit the agreement to the court, which may schedule a hearing to assess the child’s best interests. If approved, a judge will grant legal recognition to the custody transfer.
It’s essential to understand that finalizing a custody transfer is a significant step that can be challenging to reverse. Should you wish to regain custody later, you’ll need to file a petition with the court. A court will evaluate whether it’s in the child’s best interest to return to your care, considering the terms of your agreement.
Appointing Guardians: An Alternative Approach
Another proactive measure to protect your child in the event of deportation is appointing a guardian without terminating your parental rights. This approach offers flexibility and can be categorized as follows:
Informal Guardianship:
This is a short-term solution commonly used when a parent is temporarily unavailable or unable to care for a child. You can use an informal guardianship form to appoint another trusted adult to care for your child’s well-being. While court approval isn’t required for informal guardianships, notarizing the form can facilitate its acceptance by medical and educational institutions.
Court-Ordered Guardianship:
To establish a more formal guardianship, you can file a written request with the court. The process typically involves both parents and the proposed guardian filing written declarations agreeing to the arrangement. In specific circumstances, guardianship can be established without parental consent, particularly if the parent objects or cannot be reached. It’s advisable to consider court-ordered guardianship while you’re still present in the United States and can provide written consent.
Once a guardian is officially appointed, they assume the responsibility of providing your child with a stable home, education, and necessary healthcare. The duration of the guardianship varies; it can be temporary or permanent, depending on the circumstances and court decisions.
Safeguarding Your Child’s Medical Care
Parents in the United States have the legal right to make healthcare decisions for their children. However, in the event you are unavailable or deported, you can designate another trusted individual through healthcare directives. Here’s how you can ensure your child’s medical needs are met:
Health Care Directives:
Consider creating healthcare directives that designate a trusted adult to make medical decisions for your child in your absence. These directives can include detailed instructions for medical treatments and procedures. Sign the directives to make them legally binding, and in some states, have them witnessed or notarized.
Ongoing Health Care Planning:
If your child has chronic health issues or requires regular medical attention, incorporate a comprehensive health plan into your directives. This plan should cover decisions related to treatments, specialists, and emergency medical care.
By taking these steps, you can guide your child’s healthcare even when you are not physically present.
Impact of Deportation on Families
Separation and Emotional Consequences
Deportation often leads to abrupt separation from children, which can result in significant emotional and behavioral challenges for the children left behind. Studies indicate that children may experience anxiety, depression, and changes in behavior such as increased aggression or withdrawal after a parent’s deportation. Witnessing a parent’s arrest or being left without a clear explanation can intensify trauma, resulting in long-term psychological effects.
Economic Hardship
The economic consequences of deportation are severe. Families typically lose a substantial portion of their income—averaging around 70%—within six months following a parent’s arrest. This financial strain often forces remaining caregivers, usually mothers, to work multiple jobs, reducing their availability for emotional support and care for their children. Older siblings may take on caregiving roles or seek employment to help support the family, further complicating their educational pursuits.
Child Custody Planning Considerations
Legal Risks and Custody Loss
Parents facing deportation may fear losing custody of their children. Although outright loss of custody is relatively rare, it can occur if parents are unable to meet court requirements due to detention or deportation. For instance, parents may miss child custody hearings because they cannot return to the U.S. after deportation. This situation can lead to termination of parental rights if they cannot demonstrate ongoing involvement in their children’s lives.
Policy Responses and Support Mechanisms
In response to these challenges, there have been efforts at various government levels to mitigate the impact of deportation on families. ICE has implemented directives to promote parent-child visitation during detention and to prioritize parental interests in removal proceedings.
Recommendations for Affected Families on Child Custody Planning
Nigerians facing potential deportation should consider the following steps:
- Seek Legal Assistance: Engaging an immigration attorney can help navigate complex legal landscapes regarding custody and immigration status.
- Document Relationships: Maintaining records of involvement in children’s lives—such as school events, healthcare appointments, and regular communication—can be crucial in custody considerations.
- Explore Community Resources: Many organizations offer support for immigrant families facing deportation, including legal aid and counseling services.
- Plan for Child Care: Establishing a plan for who will care for children in case of deportation can help mitigate disruptions in their lives.
- Stay Informed About Rights: Understanding one’s rights regarding custody and immigration can empower parents to make informed decisions during challenging times.
Communication with Educational Institutions for Child Custody Planning
Once custody arrangements or guardianships are established, it’s essential to inform your child’s school promptly. Schools typically release information only to listed guardians, so make sure your guardianship order or agreement includes provisions for school notifications and communication.
Seek Legal Counsel
Navigating the complexities of child custody planning and guardianship in the face of potential deportation requires legal expertise. It is highly recommended to consult with a local family law or estate planning attorney who can review your documents and ensure your child’s best interests are protected. Additionally, you may explore the possibility of pro bono legal services through your local bar association.
In conclusion, preparing for the uncertainties of immigration enforcement as an undocumented parent is essential for the welfare of your U.S. citizen child. By proactively making custody arrangements and healthcare directives, you can provide your child with stability and care even in your absence. Consulting with legal professionals can help you navigate this challenging process and ensure the best possible outcome for your child’s future.
How Law and Visas Can Help?
At Law and Visas, our team of expert consultants is here to make your child custody planning straightforward and successful. Whether you’re navigating custody arrangements or need assistance with your Asylum Applications, we handle every step—from assessing your situation to preparing the necessary documents and providing guidance throughout the process.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients with Child Custody Planning. Call us today at +234 812 5505 986 to learn how we can assist you.
