It is for this reason that the current changing trends in immigration enforcement in the United States continue to pose a concern to the welfare of undocumented immigrants and their families. Most of America’s undocumented residents, especially those of the child-bearing age, live in fear of being arrested or summarily deported by ICE. This guide aims at asking the questions that arise when in a scenario you are detained or deported by ICE, and how to work towards ensuring a favorable 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 be detailed and include specific instructions regarding medical treatments and procedures. Ensure that the directives are legally binding by signing them, and in some states, having them witnessed and/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.
Communication with Educational Institutions
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 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.
