All parents panic at the thought of an emergency that separates a parent from a child and leaves the child temporarily with no immediate care provider. No parent wants the state to take responsibility for their child, or consider foster care for a temporary situation when better options exists. This parental concern is even stronger for parents who fear contact with Immigration & Customs Enforcement or another law enforcement agency. There are legal tools that help a parent prepare for such a scenario.
In many cases, the period of separation is less than twenty-four hours and a child goes to a family friend or nearby uncle’s home. The first step is an often overlooked one, which is regularly updating a child’s school emergency contacts and communicate the anticipated plan for temporary care of the children to those involved.
The second thing to do is prepare. Start by assembling a binder or folder that contains copies of key family document, including birth certificates, passports, and medical insurance cards. A family should also include contact information for other family or close friends. The binder or folder be kept in a safe place, but not in a place so secure that a person cannot access it without a key. The goal is to help a temporary caregiver know where to find the important documents and to allow access to them.
Minnesota statutes offer several legal avenues to achieve the parents’ goals for their children’s care in place, whether it is temporary or long term, including filing for sole or joint custody, delegation of parental rights, standby custodian, power of attorney, and transfer of custody. These options preserve parental rights, while maintaining the child in his current school and ensuring the child can receive any necessary medical treatment while in the care of another adult. One size does not fit all, however. It is important to consider the unique circumstances of the family, time constraints, and the intended outcome.
Minn. Stat. §. 257.541 states that an unmarried mother who gives birth to a child is automatically deemed to be the sole legal and sole physical custodial parent. This means that even if the mother signed a Recognition of Parentage with the child’s father and his name is on the child’s birth certificate the father has no rights to custody or even parenting time without a court order. A father seeking to share custody with the mother, seek sole custody, or request parenting time with the child, must properly serve and file a custody summons and petition. If the Court has ruled on custody and parenting time, then any contested issues about where the child will go if one parent is ordered removed from the U.S. must be litigated through the family court custody case. Minnesota law does not allow one parent to move the child out of state unless certain criteria are met, and it is a very difficult burden to meet.
Delegation of Power by Parent or Guardian
Minn. Stat. §. 524.5-211 allows a parent to delegate parental powers to another person via a power of attorney. The delegation is effective for one year. It that takes effect immediately upon signing it. One benefit is that the document only needs to be signed by the parent in front of a notary and signed by the person receiving the delegation. It does not have to be filed with the court. The other parent must receive a copy of the delegation within thirty days of signing it, unless the other parent does not have unsupervised parenting time.
While the delegation of parental authority is an easy option for a lot of parents, it likely will not work for parents who fear a random detention. This is because the document takes effect immediately upon signing it and is only good for one year. Parents must make sure that they trust the person receiving the delegation of parental authority and remember to execute a new document every year to make sure it is valid. A better option may be to wait until something happens and then prepare the delegation of parental authority.
Power of Attorney
Minn. Stat. §. 523.23 is the general power of attorney form authorizing another individual to act on various financial, fiduciary, or familial matters. A power of attorney is effective for one year. This is a good option for people who own businesses or have assets here in the United States because it will allow the person receiving the power (“attorney-in-fact”) to sign legal documents, take money out of accounts, and manage important financial decisions. An individual in detention often signs this document so a family member can get access to the person’s bank account for bond purposes, or enter his or her apartment to secure the person’s belongings.
Minn. Stat. §. 257B.04 allows a parent to designate a standby or temporary custodian to go into effect upon a triggering event, such as deportation from the United States. It can be filed with family court either prior to the triggering event, or no later than sixty days after the triggering event. If the designation is not filed with the court, the standby custodian only has control of the children for sixty days. This may be the best option for parents fearing arrest and deportation as the standby custodian only receives this power when the triggering event occurs. Other triggering events can be indicated, such as death, incapacity, or inability to return to the United States.
Transfer of Custody to Third Party
Transfer of custody to a third party is a more permanent legal action most applicable to the unique situation of a parent who is going to be deported, and wants his or her child to remain in the U.S. with another adult who is not the child’s parent. It is served upon the parents and filed with family court. This action gives the non-parent adult all parental responsibilities and decision-making power for the child. A transfer of custody should be considered very carefully by all parties because it essentially grants a non-parent full rights regarding a child.
If you have any questions about how to best plan for your children’s care in the event of an ICE arrest, please contact Wilson Law Group at 612.436.7100 for a free consultation.