Under current immigration policies, the U.S. Immigration and Customs Enforcement Agency (ICE) has carried out hundreds of thousands of arrests and deportations of immigrants. Continue reading to learn more about what parents can do to ensure their children are taken care of in the event one or both parents are deported.
Who Gets Custody of My Child if I’m Deported?
Parents have the right to rear and raise their children. Those rights are interrupted when one parent is deported.
Keeping Custody in the Family through a Living Will
If one parent is deported, custody will automatically revert to the child’s other parent. In some situations, a child could end up as a ward of the state and placed in foster care if the child’s other parent can’t be located, or a court has terminated parental rights. One way to protect your children is through a living will.
You can use a living will to designate a guardian for your children in the event you become unable to care for them through a situation like illness or deportation. A living will lasts only while you are alive, so make sure that your final will and testament identifies who should have custody in the event of your death. Using a living will, you can appoint a temporary guardian, such as a close friend or family member to care for your children and can set aside funds to pay for the children’s expenses.
Power of Attorney
Many wills are accompanied by a power of attorney. A durable power of attorney allows an appointed guardian to make decisions on a child’s behalf, including decisions about medical care and education. It’s essential that whomever you appoint to care for your child has the authority and ability to enroll the child in school, seek medical care when needed, and otherwise provide for the child’s needs.
Using a Communication Schedule
Just because you have transferred guardianship of your child to someone else doesn’t mean you need to lose all contact. You can create a communication schedule to make sure that you receive regular updates from your child and newly-appointed guardian.
Communicating With Your Child and the Child’s New Guardian(s)
The best way to establish a communication schedule is through your living will, a custody transfer order, or during a guardianship proceeding. Your communication schedule should specify how frequently you expect contact or updates from the guardian and how often you want to speak to your child.
There are many ways to stay in touch, including phone, text messages, FaceTime, Skype, and What'sApp, which allows you to make free, international phone calls.
You can make a communication schedule part of a temporary guardianship order. If the guardian refuses to follow your communication schedule, you can have the guardianship set aside and appoint a new guardian. Because this is your child, you can call the shots on how often you want to be able to communicate with your child and/or the guardian.
Communicating With Your Child’s School
Although you’re the parent, schools are reluctant to communicate with anyone other than the legally-appointed guardian. This is because some guardianship cases involve biological parents who have lost custody of their children for abuse or neglect. In a situation where you fear deportation, be sure that your guardianship or custody transfer order specifies that the change in custody or guardianship is due to your unavailability—not abuse or neglect. Generally, if a school is informed of your situation, the school administrators may agree to update both you and the child’s guardian.
Organize Finances for Your Children
When you transfer custody or guardianship to a third-party, you're transferring all legal rights and responsibilities for the child, except for financial responsibilities. A parent’s responsibilities to financially support a child continue unless the parent’s rights have been terminated. This means you will need to provide for your child’s financial needs in your absence.
You can create a trust or living will that defines where money will come from and how it should be used to provide for the child’s needs in your absence. You can even set up a bank account in your child’s name that can be managed by the temporary guardian in your absence or until your child reaches age 18. However you decide to organize finances for your children, just make sure you have a detailed plan.
What Happens if the Deported Parent is Allowed to Return?
If you're deported, but able to return to the United States later, you may be able to set aside a guardianship or custody order to regain custody of your child. Permanent guardianship orders are harder to change than temporary custody or temporary guardianship orders, but not impossible. Generally, a court would want to see a material change in circumstances that justifies the change in custody.
Planning ahead will ensure that your child is taken care of in any situation. Although the future may feel uncertain, having a guardianship and financial plans in place for your child may help alleviate some fears about how your children will be cared for if you must leave the country.