What You Need to Know About Advance Planning for the Care and Custody of Your Child -- The Legal Aid Society

If you are the parent of a minor child, you are not a U.S. citizen, and believe that you might be at risk for being removed (deported) from the U.S. in the future, there are certain steps you can take now to plan for the care and custody of your child.

School Emergency Contact

If your child is enrolled in school, you can name up to three people whom the school can contact if there is an emergency or if your child is sick. Add them to your child’s “Blue Card” at school.

School Emergency Contact Card (English)
School Emergency Contact Card (Spanish)

Passport

Use this form to request a U.S. passport for your child, if they are a U.S. citizen. If they are under 18 years of age, the other parent will have to give their consent, or you must explain why the other parent’s permission cannot be obtained or is not necessary. 

Form DS-11, U.S. Passport Application
Form DS-3053, Consent of Other Parent
Form DS-5525, Statement of Exigent/Special Family Circumstances for Issuance of a U.S. Passport to a Child Under Age 16  

If your child is not a U.S. citizen, ask the appropriate foreign consulate for instructions on how to obtain a passport for your child.

Travel Permission

If you would like to authorize your minor child to travel abroad alone, check your airline’s policy for travel by unaccompanied minors. 

If you would like someone to accompany your minor child on a trip abroad, sign this authorization (each parent should sign one, or you must explain why the other parent’s permission cannot be obtained or is not necessary). It must be signed in front of a notary public. Your child should travel with their original birth certificate and passport, as well as with copies of the documents listed on the Travel Permission form. Also, check the airline’s requirements for unaccompanied children. 

Travel Permission 

Designation of Person in Parental Relationship

Use this form to allow someone to make school decisions and health care decisions for your child. Sign in front of a notary public. You do not need an attorney for this.

Designation of Person in Parental Relationship (English)
Designation of Person in Parental Relationship (Spanish)

Power of Attorney

Use this form to allow someone to handle property transactions for you. It must be signed in front of a notary public. You do not need an attorney for this. The Power of Attorney does not directly concern care or custody of children, but rather is limited to property matters such as your bank account, apartment lease, insurance matters, health care billing, and so on. Use this only if you want to give someone power over your property.

Power of Attorney

Guardianship or Custody Petition in Court

The Family Court or Surrogate’s Court can issue orders regarding formal guardianship or custody of your child.

WARNING: Although having an order of guardianship or custody can be helpful in terms of establishing someone’s rights regarding your child, there are many risks with going into court for custody, guardianship, or standby guardianship:

• The other parent must generally be notified of these sorts of court proceedings.
• The other parent can call immigration to come to court when you are going to be there! This is especially dangerous if you already have a final removal (deportation) order.
• The other parent may reappear after being absent from your child’s life, and file their own petition regarding your child.
• In a court battle, the other parent will have greater rights to your child than the person that you hope will get custody or guardianship.
• Once a custody order is finalized, it can be very hard to get a court to change the order. So, if you want to get custody back, you would need to show a substantial change in circumstances in your child’s life; this can be difficult to show.
• The custodian may seek child support from you!

Speak with a qualified attorney before starting any sort of court proceedings regarding your child.

Standby Guardianship Designation

This form is to name someone to be on standby as a guardian for your children. They could become the guardian if you are “administratively separated” from your children (like through immigration enforcement), or if you have serious medical issues. It becomes effective either when the “administrative separation” occurs, or when a doctor certifies that you have become mentally incompetent; if you have become physically debilitated and you consent to the designation taking effect; or if you pass away. This can be filed with the Family Court, but you don’t have to file it.

Standby Guardianship Designation  

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A PDF version of this resource has been created with QR codes to access the document linked above. You can download it in English, French, and Spanish.

Disclaimer

The information in this document has been prepared by The Legal Aid Society,  Immigration Law Unit, Legal Services NYC, and Urban Justice Center, Domestic Violence Project, for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.