As undocumented foreign nationals discover too often, immigration enforcement priorities can change overnight, leading to strict measures against even longtime residents of the United States who do not have immigration legal status. Being that it is a crime to unlawfully enter the U.S. all foreigners in the country without a lawful immigration status are subject to an ICE arrest and deportation. Criminals and people who are threats to public safety are the first priority for removal out of the country; one can never count on avoiding an ICE arrest.
There is also a possibility for U.S. green card holders (Lawful Permanent Residents) to face deportation proceedings most likely due to a criminal conviction or history that was not disclosed previously.
Several foreigners facing possible removal are parents of young children who were born in the U.S. If these parents are detained, incarcerated, and or deported, their children could end up relocated to the local foster care system. With some careful consideration, however, parents can make specific arrangements to ensure their children will be cared for in the event of their deportation.
Is it Possible to Make Child Custody Arrangements in Advance of Deportation
One of the best ways to protect your U.S. citizen children from becoming part of the foster care system is to plan ahead. It is important to make custody arrangements or appoint a guardian if you fear you could be deported from the U.S.
Making Transfer Arrangements for the Custody of Your Children
A custody transfer starts with a voluntary, written agreement to assign your physical and legal custody rights to another trusted and responsible adult. Through the transfer, you can give a new custodian the right to physically care for your child and to make decisions regarding your children’s health, education, and welfare.
Both parents of children must agree to a custody transfer. If the other parent of your children have custodial rights you will need to get the other parent’s written consent to the proposed transfer. If the parent objects, you will need to go to court where a judge will make the final custodial decision.
Once the other parent agrees or if you are the only legal parent, you and the proposed custodian should sign the agreement in front of a notary public, (someone who can confirm the signer’s identity) and submit it to the court. The court will likely schedule a hearing to decide whether the custody transfer serves the best interest of the children. If so, a judge will approve it. Be mindful that finalizing a custody transfer is a serious solution and could be difficult to undo.
If you want to regain custody later, you will need to file a petition (written request) with the court. A judge will decide whether it is in the best interest of the children at that time to transfer custody back to you. You might want to include language in your agreement saying that the custody arrangement is intended to be in effect only during your deportation. A court will still have the authority to make final custody decisions, but these terms could give you a better chance of regaining custody if and when you are able to return to the U.S.
Orchestrating Informal and Court-Ordered Guardianships for Children
Another way to protect children in advance of your possible deportation is to appoint a guardian without terminating your parental rights. An informal guardianship is a short-term solution that’s commonly used in situations where a parent is unavailable or unable to care for your children.
Since you do not need a court approval for an informal guardianship, it is a good idea to complete a form for a Temporary Guardianship for Care of Children. As soon as the form is completed it is a good idea to have it notarized, this way doctors and school officials will be more willing to accept it.
You can establish a court-ordered guardianship by filing a written request with a court. Although state rules vary, most guardianship proceedings require the parent and proposed guardian to file written declarations agreeing to the arrangement. In certain circumstances, a guardianship can be established without parental consent if the parent objects or cannot be reached. For instance, if you have a family member, such as an aunt or uncle, who has been caring for your children, she or he could petition with the court to become the guardian of your children immediately following your deportation. But if you believe you are at a high risk of getting deported, and you already have someone identified who can raise your children in your absence, consider establishing a guardianship while you are still in the U.S. and can consent in writing. Even when doing an informal and court-ordered guardianship for your children, always consult an attorney for advice.
Pursuing Legal Assistance
If you get arrested by ICE and you are put in removal proceedings do not delay in hiring an immigration attorney that is well versed in getting you a guardianship for your children. Schedule a consultation with Gambacorta Law Office today by calling at 1-847-786-2599.