Families who may face immigration enforcement actions sometimes seek to prepare in advance to ensure the care of their children in case they are temporarily or permanently unable to care for them. One option to consider is establishing legal guardianship or third-party custody, so that a trusted adult can make decisions on behalf of the child if necessary.

What is legal guardianship or third-party custody?

Legal guardianship or third-party custody is a legal arrangement in which a court authorizes an adult other than the child's parent to assume responsibility for the child's care. This includes the ability to make decisions about the child's medical care, education, and legal matters. Generally, the guardian or custodian has full legal and physical custody, although this arrangement does not terminate parental rights.

How to establish guardianship or custody?

The process for obtaining legal guardianship or third-party custody varies by state. In most cases, a petition must be filed with a court. The court type may be family, probate, or juvenile, depending on the state. Families interested in this option can consult their local court's self-help center for more information and the necessary forms.

It's important to note that many states do not allow "conditional" guardianships that are automatically triggered by a future event, such as detention or deportation. Generally, documents must be filed once the need arises. However, some families choose to prepare the documents in advance and have them ready in case of an emergency.

Who can be a guardian or custodian?

Generally, a guardian must be an adult over the age of 18. Courts often conduct background checks to ensure the proposed guardian or conservator is fit and safe. In some cases, an interview or home visit may also be required. Immigration status is not always a barrier to being appointed as a guardian, although this may vary by jurisdiction.

Considerations regarding legal power (power of attorney)

Some families may consider using a power of attorney (POA) to grant a caregiver the ability to make decisions for their child. Although this option can be helpful in certain circumstances, POAs are often temporary and are not always fully recognized by schools or medical providers. For this reason, legal guardianship can offer more comprehensive and lasting authority.

Where to look for help

Families can find assistance through their local court's self-help services or legal aid organizations. Nonprofit networks such as the Catholic Legal Immigration Network (CLINIC) can offer referrals and guidance on how to establish legal care plans.

For more information, visit cliniclegal.org or follow CLINIC on its social media platforms.