by Randi Mandelbaum, JD, LLM
What will happen to my child if I get detained or deported? This is the question that no parent should have to ask. And yet, it has been asked frequently over the last decade, and even more so since November 2024, often accompanied with a sense of panic. This anxiety is understandable. While there are no exact details as to the number of parents detained, as of September 21, 2025, nearly 60,000 people were in immigration detention. 71.5% of these detainees had no criminal conviction, and many of those convicted of a crime had committed only minor offenses such as traffic violations (Transactional Records Access Clearinghouse, 2025). In addition, more than 527,000 individuals have been deported since January 2025 (U.S. Department of Homeland Security, 2025). ICE, which stands for Immigration and Customs Enforcement, is the unit of the U.S. Department of Homeland Security that is responsible for enforcing federal immigration and customs laws in the interior of the United States (U.S. Immigration and Customs Enforcement [ICE], n.d.). Since January 2025, ICE has terrorized noncitizens across the U.S even more than in the past by abandoning laws and policies and detaining any people they encounter without lawful immigration status, and at times even those who have lawful status, including U.S. citizens (American Immigration Council, 2025; Cheney & Ward, 2025).
While there is no way to alleviate the alarm that most noncitizens are currently experiencing, there are concrete actions that parents can take to plan for the care of their children, should their worst fears be realized. In almost every state, there are laws that permit parents, and at times legal guardians and legal custodians, to delegate another adult with the authority to care for and make decisions about a child (ICE, 2024; Appleseed Network, 2025; Catholic Legal Immigration Network, n.d.). Many instruments were developed during President Trump’s first administration to specifically address the special concerns of non-citizen parents. They are often colloquially called “powers of attorney.” However, in many jurisdictions, they are technically not “powers of attorney.” Rather, they are documents that conform with state laws, permitting the delegation of certain child-rearing authorities to another trusted adult. In some states, the document must be issued by a judge; while in other states, it can be created outside of court. Still other states have a hybrid process where a short-term form can be completed outside of court, and for more long-term care-giving circumstances, judicial action is necessary. Requirements as to whether the document must be notarized and/or witnessed also will vary by jurisdiction. The document is typically good for a set amount of time, defined by state statutes. Periods of six months to a year are quite common. It is also often able to be renewed.
In many jurisdictions, especially with out-of-court documents, parents can designate when the document goes into effect. For example, they can state that the document should only be activated if they are subject to immigration enforcement actions and/or imprisonment. In these instances, parents delegating authority never lose any of their rights to their children. Even for the period that the document is activated, the parents share decision-making power with the substitute caregiver, called concurrent authority. The scope of what is authorized is up to the parents who create the document and is specifically set forth in the document. Commonly, the document will permit the substitute caregiver to make medical and educational decisions, care for and provide for the child, handle any financial matters in which the child may be involved, and arrange for and approve travel, although importantly, these documents do not permit the alternate caregiver to obtain a passport, as those requirements are subject to different laws (N.J. Stat. Ann. § 3B:12-39, 2024). Who can be delegated as an alternate or substitute caregiver will vary by jurisdiction, but commonly it must be an adult over the age of eighteen and should be someone who the parent trusts and with whom the child will be safe and comfortable. Whether the substitute caregiver must have lawful immigration status and/or whether the alternate caregiver must reside in the state where the child and parent live are common questions for which the answers will vary from state to state.
The decision to create a “power of attorney” for the care of a child may be a difficult one for the parents and should never be forced. Yet, in many instances, it can help provide “peace of mind” at a chaotic time. It is also an area where allies and non-lawyers can assist. For example, many law school clinics, immigrant rights organizations, and faith-based institutions have begun holding “pop-up clinics” in the community where parents are invited, educated about the importance of family preparedness, and provided the opportunity to create a “power of attorney.”
The importance of planning for one’s child cannot be overstated. If a “power of attorney” document is in place, it will mean that a trusted person, chosen by the parent or parents, can step in to care for the child if the parents cannot. It also may mean that the child will avoid entering our child welfare system and being placed in foster care because substitute care arrangements have already been made. Taking such action is something that all parents, not just noncitizen parents, should consider doing for various circumstances, depending on what state law permits. In fact, in August 2025, the House of Delegates of the American Bar Association (ABA), adopted a resolution endorsing caregiver wills, “which urge all federal, state, local, territorial, and tribal governments, attorneys, legislatures, and policymakers to support parent and caregiver use of Caregiver Wills in situations of unavailability that may require a temporary or permanent transfer of their children’s custody to an alternative legal guardian of their designation” (American Bar Association, 2025).
The horrific reality is that families are being separated in the name of ICE enforcement. A “power of attorney” is one proactive step that parents can take to lessen the trauma and irreparable harm that such forced separation causes.
Randi Mandelbaum, JD, LLM, is the Associate Dean for Clinical Education (Newark campus), Professor of Law, and Director of the Child Advocacy Clinic at Rutgers Law School. Contact: [email protected]