Losing Your Kids: A Real Risk of Deportation
- Diana Higuera
- Mar 18
- 4 min read
By Jack Rosenberry
For parents of minor children, the possibility of deportation comes with extra concerns because temporary or even long-term separation from theIr children is a genuine risk.
“Any time there are kids involved it gets messy quick and sad quick, unfortunately,” said immigration attorney Brandon Roché.
The situations will unfold differently depending on (1) whether the children are present when the parent is detained and (2) the children’s status, that is, whether or not they were born in the United States and are therefore U.S. citizens.
Parental Detention with Kids Present
It’s possible for entire families to be arrested and deported together, Roché said. A large family detention center was just opened in Texas to keep families in the same place while that happens.
It’s even possible for parents of children who were born in the United States to ask for those children to be deported with them – which is something new with the current administration’s policy changes. Because that policy is so new, Roché said he is not familiar with any cases where it has happened.
If the children are present when the parent is arrested, the officers are likely to detain the children too if the law allows, or call the child protection office.
“Unfortunately, that's the way the system has to treat a child who doesn't otherwise have a caretaker right there,” Roché said. “They're going to have to do whatever the law calls for in that jurisdiction.”
In that situation parents may be allowed to call someone to come and take charge of the children, but that will depend on the situation and the immigration officer. The officers are under no legal obligation to allow that but may do so as a courtesy, especially if they do not want the extra hassle of either taking children into custody or dealing with the child protective service.
What Happens When Kids and Parents are Not Together
If children are not physically present when a parent is arrested – in school at the time, for example – a variety of things could happen. If the parents have left emergency contact information, school officials will try to reach those contacts and the children should end up with them. But in the absence of such contacts, or if they cannot be reached, the children likely would be turned over to the local child protection office in this situation also.
Children who are U.S. citizens would be treated like any other child who enters that system. Laws regarding how such services operate vary widely from state to state and even among municipalities, Roché said.
However, non-citizen children in such a case could be treated as unaccompanied minor immigrants, and sent to a facility designated for such children. “They don't really have ways of reuniting parents in a holding cell with their children,” Roché said. “They're gonna do whatever the system would normally do for a child where the parent is not physically present at that time.”
If parents are deported without their children, they still have parental rights and guardianship. But that is not the same as custody, Roché said, and trying to re-establish custody after losing it to the system could be difficult. Parents deported while their children remain behind will likely lose custody of their children at least in the short term, and a large number of variables could affect what happens in the long term.
Protective Measures
Roché said his main advice to parents wanting to avoid these problems is to secure legal documents that could protect the children. This should be done in advance because trying to file papers designating who should care for the children once the deportation process has started is very difficult, he said.
Parents should start with naming a legal guardian who can take custody of the children if anything happens to the parents. Having that person listed as an emergency contact to be reached when the parent cannot be contacted is another important thing to do.
The guardian should have legal status to remain in the United States to prevent a situation in which the person taking charge of the children also is detained or deported, again leaving the children without a caretaker.
If a child does end up in the custody of child protective service, the guardianship document can be helpful in getting them removed from that and placed with the guardian the parents have selected. At the time of arrest, it also may be helpful for a parent to tell the officer the children have a guardian and ask that they be allowed to go to that person.
Roché recommended getting help from a qualified family lawyer to obtain those documents.
Getting documentation that would allow children to travel out of the United States, either a home-country passport for a non-citizen or a U.S. passport for a U.S.-born child, also is important. Having such documents will be necessary if parents who have been deported want to arrange for their children to join them later.
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