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Family Law Strategies for Undocumented Parents!

In the United States today, more than eight million citizens live with at least one family member, often a parent, who is undocumented. Almost six million citizen children under the age of 18 live with a parent or family member who is undocumented. Parents who are illegally present in the United States fear deportation under the Trump administration. They are inundating immigration advocates with requests for help in securing care for their children in the occasion they are expelled from the country. Accordingly, immigration enforcement actions and the continuous threats concerning them, have compelling developmental, emotional, physical, and economic consequences on the children left behind. Deportations of parents and family members have severe repercussions that affect children and expand to communities and the country altogether. The best way to protect your child from becoming part of the foster care system is to plan ahead.

If parents don’t plan it is possible for their children to enter the child welfare system. Although child welfare may try to release children to a relative or a friend without opening a case, they may place children in foster care instead. This is likely to happen when there is no other adult in the home available to care for the children. Parents may temporarily or even permanently lose their parental rights. To keep your parental rights, you must show evidence of your relationship with your children and your commitment to their well-being. In some cases, the child welfare system may not even allow a parent to contact his or her child.

A way for you to plan and protect your children from all of this is to think of a temporary guardian. Why is Temporary Guardianship so important? It allows you to designate someone that will act as a parent for your child. This is a useful safety plan. However, temporary guardians must meet the same rule as regular guardians.

Some courts require the temporary guardian to:

  • Have legal immigration status

  • Be of legal adult age (18)

  • Must physically be able to fulfill the responsibilities

  • Have enough time to care for your children

  • Must be able to afford to raise your children, either through his or her own income or through assets you leave for the care of your children.

Being a temporary guardian will enable you to:

  • Consent to medical treatment to the child

  • Enroll the child in school

  • Obtain medical and school records of a child

  • Consent to participating in school activities

Another way to prepare your children for a situation like this is to have legal documents ready. It’s essential to make custody arrangements or assign a guardian if you fear you may be deported. Power of Attorney (POA) is a document that appoints and or grants authority to another person to temporarily lawfully care for your children. A POA is especially crucial for a person facing deportation or detention who does not have the time to get everything done before leaving the country or getting detained. The attorney can draft the customized document as either a limited, general, or durable general power of attorney depending on your specific needs. If this option is going to be used, it’s important to make sure the document is as accurate as possible, being clear about what powers and responsibilities are being given to the caregiver. Specific caregiving duties and legal decision-making authority can be assigned. The document might not be accepted for all official purposes, but it could be helpful for the caregiver. It might also help show the court that you made an effort if that becomes important later on.

Using legal documents to authorize someone to care for your children is a serious step and will give that person legal authority over the care of your children. It is essential that you assign this privilege to someone you trust completely! It is also best to choose someone who is a U.S. citizen or who has legal status. Before asking someone without papers to care for your children, ask a lawyer or legal aid organization about the practices in the state where your children are living.

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