How Undocumented Immigrant Parents Can Safeguard Their Children

It’s estimated that more than 168,000 children in New Jersey — approximately 9 percent of the state’s total child population — have parents who are undocumented immigrants. With U.S. immigration and visa policies tightening, and deportations on the rise, immigrant families increasingly must face heartbreaking decisions about how to prepare for a worst case scenario. If parents are deported, should they take their children with them — even if the children are U.S. citizens? How can they provide for and protect their children who remain behind? And how can parents be sure they are making the best decisions possible in the face of extreme uncertainty?
In a feature article published recently by the New Jersey Law Journal, Bari Weinberger takes an in-depth look at the legal options available to undocumented immigrant parents and their children, who themselves are often natural born U.S. citizens. Bari carefully examines factors parents can take into consideration in deciding whether children should stay or go with them following deportation, and how they can prepare. Key advice she offers includes the following:

Understand Home Country Living Conditions. In the event of deportation, most parents want to keep their families intact whenever possible. Immigrant and Customs Enforcement (ICE) will generally attempt to accommodate undocumented parents who wish to have their U.S. citizen children relocate with them. However, staying together is not always a feasible. Financial issues may be present, and parents may face challenges in looking for work while simultaneously trying to care and provide for their young children.

There is also the matter that if parents are returning to a home country plagued by food shortages, poverty, and/or war and violence, there can be further complications, such as children who are not citizens of the parent’s home country being ineligible for services. For example, as reported by NJ.com, a deported mother returned to Venezuela and lined up for milk at 2 a.m. with her one-year-old daughter, only to be turned away at the door when she showed her daughter’s U.S. birth certificate.

Action step for immigrant parents: Parents can earn about general conditions and access to resources for their children by contacting the nearest consulate of their home country. An attorney, social worker, or other advocate can take this step on behalf of a parent.

When Custody Orders Are in Place, Get Permission First. An immigrant parent who does not have sole legal custody of his or her children and want to take the children along if deported, must obtain written consent from the other parent, or provide a written explanation of why such consent is not possible (i.e., because the other parent can’t be located).

Action step for immigrant parents with custody agreements: Read over child custody orders to determine if custody is shared or sole. Go about obtaining permissions with the help of an attorney to ensure documentation will be acceptable to the courts. Apply for passports for children as soon as possible.

Execute a Power of Attorney. Immigrant parents who want their American citizen children to remain in U.S. can execute a Power of Attorney (POA) that appoints a temporarily caregiver for children in the event parents are deported or detained. A POA can include directives such as instructions and provisions for how and when children are to travel to reunite with the parent (if planned). In New Jersey, a Power of Attorney (POA) can appoint a temporary caregiver for a maximum of six months.

Action step immigrant parents can take now: The Rutgers University Child Advocacy Clinic has created a model POA for parents, which gives a temporary caregiver authority over travel, health care, and school arrangements, and also includes an “emergency plan” with tips for parents at risk. Documents can be found on the Rutgers Law School website under the Child Advocacy Clinic tab.

Choose Caregivers Wisely. When the immigrant parents pursue a POA, their choice of named caregiver is critical. The safest approach is to choose someone who meets Department of Child Protection & Permanency standards. This means choosing a caregiver who is both willing to care for children and be physically and financially capable of doing so. The caregiver, as well as any other adults in the caregiver’s household, must also be able to pass criminal and child abuse registry background checks. If a child has any special needs, the caregiver must be able to accommodate these. Be aware that DCP&P supports placement of children with relatives or close family friends (“kinship caregivers”) whenever possible. The best interests of the child are always placed first.

Action step immigrant parents can take now: Regardless of your relationship with a potential caregiver, carefully interview this person to understand if anything in their life or living situation could place your child at risk, or force DCP&P to intervene.

Make Financial Provisions. If parents have the ability to leave funds behind for their children’s care, or plan to send funds back to the United States, an easy method of providing a custodian with access to funds for children’s expenses is to set up a Union Transfers to Minors Act (UTMA) bank account. There are downsides to such accounts, however, including the broad discretion given the custodian for use of the funds and the fact that the child will gain unrestricted access upon reaching majority. For higher value assets, or assets a parent wishes to allocate to a specific purpose, establishing a trust may be a better choice. An attorney can help you set up trusts, or incorporate access to money as part of the POA.

Plan for the Long Term. In situations where there is little chance that undocumented parents will regain the ability to re-enter the U.S. following deportation, an attorney can help parents create a third-party custody agreement with the child’s custodian caregiver that addresses physical custody, legal decision-making authority, and parental rights and responsibilities such as payment of financial support and visitation with the child. Parents seeking to retain their rights must use every means available to stay in contact with their children and continue to provide whatever support they can.

New Jersey also has an option known as Kinship Legal Guardianship (KLG) that provides for the transfer of most parental rights to a kinship caregiver, while still allowing parents to retain some critical rights, such as the right to visitation. Parents can petition to reverse a KLG if circumstances change, but in most cases the placement remains effective until the child turns eighteen.

Undocumented immigrants with United States citizen children may face wrenching decisions if they are forced to leave the country. Careful advance planning and legal advice can help ensure that parents achieve the best possible outcome in an extremely challenging situation. Getting the help and assistance of an attorney who is highly skilled in immigration and international child custody issues is strongly recommended.

Are you an immigrant parent with questions about how to protect your children’s future? We can help you set up a Power of Attorney, establish a Kinship Legal Guardian, prepare custody arrangements, and more. For a completely confidential and free consultation with an experienced family law attorney, please contact us today to schedule a time to come in at your convenience. (Spanish-English bilingual attorneys available.) During this uncertain time, we encourage you to get the legal guidance you need. We are here for you.

Read More:

 New Jersey Supreme Court Issues Opinion on Special Immigration Juvenile Status Cases