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What Happens to the Children of Undocumented Aliens If the Parents are Deported?

  • March 13, 2017

Recently, there has been a considerable amount of press around the deportation of illegal immigrants. As the political situation evolves, there is growing concern about the well-being of the American-born minor children of undocumented aliens. What will happen to that child if the parents are deported? Who will take care of the child? Will they end up in foster care?  How can you protect your family NOW?

Not being prepared can cost you custody of your child.

In the event parents are deported, any child left behind may be considered abandoned and under the law, could be placed in the care of the Commissioner of Social Services. Furthermore, parents of US born minors may have their parental rights terminated.

There are two common scenarios.

Scenario One: Both parents are undocumented aliens and their young, American born children will be following their parents to their native county. If the parents are deported, the children will need a person with authority to take care of both their educational and medical needs prior to the child leaving. For these families, the parents can designate a “person in parental relation” to take care of the children’s needs for up to six (6) months. This person will be able to assist transporting the kids back to their home country. Because of anti-kidnapping laws, most airlines will not allow a non-parent, without consent of the parents, to take a child out of the country. Therefore, prior to deportation, parents should designate someone to accompany their kids back to their parents’ homeland. The proper form and proper execution is very important.

Scenario Two: applies to more established nonresident aliens, who may own property in the US and have children under 18, whom they would like to remain here as they are in school and have established a life in the states.  In these cases, it is advised that the parents establish a power of attorney and appoint someone who will be responsible for the parents’ assets, including real estate, bank accounts, investments, cars, etc.

The parents in scenario two should provide consent to the Surrogate Court for someone to petition for guardianship of their minor children. That person can then manage their person and property of their American-born children. A petition for guardianship is more complicated – the petitioner/guardian must make application to the Court and request that the judge decide their suitability. Since both parent’s consent is required, parents should arrange this with their lawyer prior to their deportation.

Selecting a person in parental relation: NY General Obligations Law: provides a good option for parents to designate someone they trust to take charge of their children’s medical and education needs.  Again, parents should contact a Family Law attorney to help them fill out these forms.

Stenger, Glass, Hagstrom, Lindars & Iuele LLP is working on several cases to help families protect their American born children in the event of deportation. “Much of the law to protect the American born children of undocumented parents can be found in the Family and Surrogate Courts,” said Fred Clarke, Family Law Attorney at Stenger, Glass, Hagstrom, Lindars & Iuele LLP in Dutchess county. “Parents need to prepare their affairs in advance, especially as it relates to their children, in the event they are unexpectedly picked up by ICE.”

What can you do to protect your family and assets?

  1. Identify someone you trust to take care of your US born (minor) children;
  2. Identify someone they trust to manage their finances, assets and all personal and real property;
  3. Contact relatives in your home country and determine the address and phone numbers for where your children will be transported should deportation occur;
  4. Put all important papers (passports, birth certificates, legal forms, in a safe place and give instructions to your guardian to locate if you get deported;
  5. Be prepared to file petitions in Surrogates’ Court or Family Court to ensure that your children are left with a trusted guardian and not placed in the foster care system.


Contrary to public opinion, these cases are not rooted in immigration law; they are covered in Family Law and Surrogates’ Court Procedure Act.  SDG has lawyers with Family and Surrogate Court experience to make sure your children and assets are protected.  Contact us today to make sure your family is protected if you become involved in deportation matters.

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