Steps to Take Now to Avoid Losing Custody of Your Children if You are Detained by ICE

Authored by: Steptoe & Johnson LLP, with assistance from AYUDA, the Children's Law Center, and the Capital Area Immigrants Rights Coalition

This is the first of a two-part guide. You can find the second part here and download the entire guide here.

Make A Plan Now!

If you do not have permanent lawful status in the United States, or if you have lawful status but have been charged with or convicted of an offense, you may be at risk of being detained by ICE. It is important that you make plans for the care of your children now. If you have not made any plans, it is more likely that your children will end up in the foster care system if you are picked up by ICE, or if you are arrested or detained for a criminal charge. You must be prepared to advocate for yourself and for your family as soon as you are detained by ICE or law enforcement, and this guide is an excellent place to start.

This article focuses on what you should be doing TODAY to make emergency plans for your children so you don't permanently lose custody of them if you are detained or deported.

Identify A Caretaker For Your Children

A caretaker is a term often used in the US to describe a person who you would ask to take care of your children if something were to happen to you. Most parents already have a person like this in mind, but they don't always make formal plans to assign this person as the official, or "designated," caretaker for their children. Follow these steps to put a plan in place for your children's care in case you are picked up by ICE.

The designated caretaker can be anyone of your choosing. This includes your spouse or the other parent of your children, but does not need to be that person. The caretaker may also be your mother or father, or your aunt or uncle, brother or sister, or other relatives. They may be a god parent or a close family friend or neighbor. You may have several possible caretakers in mind. If you have more than one child you may want to identify different possible caretakers for different children.

Ideally, your designated caretaker will be able to pick up your children right away if you are taken into custody, to avoid having CFSA take custody of them and file a case against you in Family Court (called a neglect proceeding).

Have A Conversation With The Person Who You Have Identified

After you identify a person to ask to be the designated caretaker of your children, the next step is to have a conversation with her. There are many important things to discuss with the caretaker to make sure you both are in agreement with the plans. Make sure she understands what kind of commitment she is making to care for your children if you are picked up by ICE. Make sure your caretaker is willing and able to care for your children for an indefinite period of time. Immigration cases and family law cases can take months and sometimes years to resolve, and you want to be sure your children are in a stable home for the entire time.

Here are some questions you should think through and ask your possible designated caretaker when discussing whether she is willing and able to take care of your children if you are picked up by ICE.

How long will she be able to take care of your children?

You both may think a situation will only last a few days or weeks, but unfortunately, immigration and family court proceedings can often last months, or in some cases, more than a year. If you are deported, your children may need to stay in the care of the caretaker for an even longer time. It is best to make a plan that assumes your designated caretaker will take care of your children for a long time. Sadly, many children end up in foster care because the caretaker only planned to take care of them for a few weeks, and was not able to keep them any longer.

How much will it cost to take care of your children?

Every day, your children will need food, shelter, transportation, medical care, and personal items like books and clothing. The designated caretaker may be able to obtain public assistance (and health insurance for your children if they are uninsured). But if not, will the designated caretaker be financially able to provide for your children? Are you able to set money and resources aside to help your designated caretaker in caring for your children if you are picked up by ICE? Is there someone else, such as a relative, friend, or pastor, who can contribute money for the needs of your children?

Who else is in the household?

Do you know everyone who lives in your designated caretaker's home? You need to make sure you are comfortable with everyone who will have day-to-day contact with your children. If an adult member of the household has a criminal record or has had a case involving the abuse or neglect of a child in the past, your children may not be allowed to stay in that household if the Child and Family Services Agency (CFSA) gets involved in your case.

Will there be adequate supervision?

Does the designated caretaker work? Find out who will be watching your children when she is at work. If your children attend school or are in daycare, who will drop them off in the morning and pick them up at the end of the day? You need to make sure your children will be supervised. Make sure the caretaker's home is safe for children the ages of your children.

Does your caretaker know of any special medical needs that any of your children have?

You should provide the designated caretaker with the contact information for your children's doctor or medical provider, and a photocopy of each of their Medicaid or other insurance cards. If any of your children are on medication, the caretaker should know the reason for the medicine, where it's kept, the dose, how often it is taken, and be given information about where medications are purchased.

Does your caretaker know which school your children attend?

Will she be able to keep your children in that same school? In DC, the caretaker will eventually need to establish that she is the primary caretaker of the children to register children in a school different from the one they were attending, or if one of the children moves on to middle or high school while in the caretaker's care. Make sure that you have put your designated caretaker's name, and the name of an emergency backup person, on the list of people authorized to pick your children up from school or daycare.

Does My Caretaker Have to Have Immigration Papers?

It is not required that your caretaker have legal status to care for your children in DC. But remember, the goal is stability and safety for your children, and there is always the risk that a person without legal status will be forced to leave the United States, so it is suggested that the caretaker have legal status.

Power Of Attorney Arrangements: Custodial Power Of Attorney

A Custodial Power of Attorney (CPOA) is a document that gives another person temporary power to make decisions for your children. It is advised that you create a Custodial Power of Attorney with your designated caretaker as a way to possibly avoid having your children go into foster care if you are picked up by ICE. A Custodial Power of Attorney is a private agreement between you and another person, and is NOT a court order. If the children's mother and the father both live in the home with the children, both parents should sign the CPOA.

As the parent, you may cancel or revoke the CPOA at any time. The CPOA document can give your caretaker general authority over all parenting decisions for your children, or you can list the specific things you are giving her the temporary power to decide. Though the CPOA is not required to be notarized, it is a very good idea to have it notarized. You should complete two originals: give one to your designated caretaker and keep one for yourself. Also make an electronic version, if possible, for yourself and your designated caregiver. A sample Custodial Power of Attorney and a sample Revocation of Custodial Power of Attorney, with related instructions, are included in Part 3 of this guide.

Financial Power Of Attorney

A Financial Power of Attorney (FPOA) is a document that gives another person temporary power to make decisions about your property and assets. You should consider creating a Financial Power of Attorney to make sure that someone trusted has access to your bank accounts and other property, and who will make sure that your rent gets paid, that your children have the money needed to pay for basic care, and that other financial obligations are met if you are detained.

The person who you authorize to have Financial Power of Attorney can be any trusted adult. You may choose to have the designated caretaker of your children serve as your financial power of attorney, but it does not have to be that person. However, if you choose someone other than your designated caretaker, make sure the FPOA includes instructions about providing money for the care of your children.

A Financial Power of Attorney is a private agreement between you and another person, and is NOT a court order. You have the power to cancel or revoke the FPOA at any time. A sample Financial Power of Attorney and a sample Revocation of Financial Power of Attorney are included in Part 3 of this guide.

Your bank may also have additional forms that you need to complete to give someone access to your bank account; you should ask the next time you go to the bank. The FPOA document can give the other person access to all assets or only to specified accounts or property. The FPOA should be notarized. You should complete two originals: give one to the person you have designated to have temporary access and decision-making over your finances and keep one for yourself in a safe place. You should also make an electronic version, if possible, for yourself and the person who has your Financial Power of Attorney.

Making An Emergency Contact Sheet

Because most parents are apprehended by ICE unexpectedly, it is a good idea to create an emergency contact sheet that your children, your designated caretaker, and any other family members or friends who may be able to care for your children, can keep in their wallets, purses, or backpacks. It should include the name, address, and phone number of your children's school, as well as the name, address, and phone number of places where your children are likely to be if they're not at home, in school, or at daycare at the time.

The sheet should also have the names and phone numbers of all the other individuals who you plan to give an emergency contact sheet to, so they can communicate and coordinate with each other if necessary. Everyone listed on the sheet should know about your caretaker plans for your children if you are picked up by ICE. A sample emergency contact sheet is included in Part 3 of this guide.

Make sure that you have put the names of your designated caretaker and emergency contact (and others as an extra backup, if you like) on the list of people authorized to pick your children up from school or daycare.

If you are worried about being picked up by ICE with the contact information in your possession of people who do not have lawful immigration status, you could also set up a plan to make a telephone call to someone else who has this information in a safe place, who could then contact the people on the emergency contact sheet.

Gathering Important Documents In One Place

You should have all of your important documents in a file or a plastic bag in a safe place. You should have a separate file for each of your children that includes a photocopy of each important document. even if the information is the same for some or all of your children. A list of the important documents to collect can be found in Part 3 of this guide.

Make sure you have each of your children's birth certificates, even if they were born outside of the US. If your children do not have a passport, you should get a passport for each of your children. If your children were born in the United States, you can find information about how to obtain a passport at www.travel.state.gov, or you can apply at some US Post Offices. If your children were born in another country, check with your embassy or consulate for more information on obtaining a passport. The contact information for certain embassies and consulates is found in Part 3 of this guide. If your children do not have a passport. get them a passport as soon as possible.

Your designated caretaker or others in your household, such as an older child, should know exactly where this folder is stored so, if your designated caretaker does not have her set of documents readily available, she can get them quickly if you are picked up by ICE.