Preparing for ICE Raids Part 2: How to Designate Someone to Care for Your Child

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Image courtesy of the Department of Education

This is the second article in my series on what to do if you are detained by Immigration and Customs Enforcement (ICE). It includes instructions on how to provide for your children if you live on Long Island, in New York City, or elsewhere in New York State.

When there was a large series of arrests in thirteen states more than a month ago, people began asking how they could make sure their children were cared for if a parent was arrested. There is a lot of confusion out there. Some folks told me they were filling out “power of attorney” forms, but these forms don’t cover care for children – they just give another person access to your bank account. Others wanted to set up guardianship, but these have to be court-ordered and can take months. It is important to cut through the rumors and offer some solutions that meet the real needs of immigrant families.

The first thing to keep in mind is that there will definitely be more raids and arrests than in past years, but most immigrants will not be arrested during them. Since Trump has been president, fewer than two dozen Long Island immigrants have been arrested in raids. Almost all of the raids have been at people’s homes. There have been no ICE checkpoints, workplace raids, or sweeps of neighborhoods. Some of these things may happen in the future, but only a very small percentage of Long Island’s 70,000 to 80,000 undocumented immigrants will be arrested by ICE over the next four years. Please don’t panic. Still, responsible parents want to make reasonable arrangements for their children in the remote event that a parent is arrested.

New York State offers a simple way for a parent to designate a close relative or friend to make school and limited health care decisions for their children. It is called a “Designation of a Person in Parental Relation.” The New York State Office of Children and Family Services (OCFS) has a form available in English (OCFS-4940) and Spanish (OCFS-4940S) to accomplish this.

This form is simple and free. It does not have to be filed to a court and it does not need to be prepared by an attorney. The signatures must be notarized, but the fee for notarization should be the only one you have to pay.

The attorneys at the Davis Polk law firm explain that “the form allows the parent to designate another person to make medical and educational decisions under New York Health Law Sec. 2164 and 2504 as well as New York Education Law Sec. 3212…The parent retains all parental rights with this authorization and can cancel it at any time. The children need not change school districts if the person lives in another school district.”

Parents signing this form are not giving up their children, they are merely designating another person to stand in for them with schools and doctors.

There are a couple of important limitations to this form. The person it designates can make healthcare decisions for the child but cannot authorize surgery. In an emergency, the doctor can authorize surgery, so don’t worry that you child will not be operated on if he or she is involved in an accident or has a serious illness. Also, the form only lasts six months, so the parent will have to fill out a new one every half a year.

While the form is valid in Spanish, you might want to fill it out in both English and Spanish. This way, if it is presented to a doctor or school official who does not speak Spanish, the English version can be presented.

One key thing to do first is to meet with the person you want to care for the children and discuss what you would like them to do. If your children are old enough to talk to about this, you should also include them in the discussion.

Generally, only one parent needs to sign the form. However, if there is a court order requiring that both parents agree on healthcare and education decisions, then both parents need to sign. The person designated as the person in parental responsibility also needs to sign.

Let me walk you through the form section by section.

  • Section 1: The parent should fill in his/her name.
  • Section 2: Fill in the parent’s address and phone number(s).
  • Section 3: Name the person who is designated by the parent to take parental responsibility along with that person’s address and phone number. Next, list the name and date of birth of each child who will be cared for.
  • Section 4: This allows you to state how long you want this form to be good for. Most people will check the first box (6 months). If you want a shorter period, check boxes b, c, or d. Just note that if you check d, you cannot give authorization for more than six months.
  • Section 5: This says what the form authorizes the person designated to have a parental relation can do. If there is anything on this list that you don’t want that person to do, you can just cross it out and they will not have that power. You can also write in other limitations at the bottom. Most parents signing this form just give the person designed all the powers listed.
  • Section 7: Parent signs here in front of a notary.
  • Section 8: This only needs to be filled out if the second parent has a court order requiring that he/she make joint decisions about the health and education of the child. Typically, this would be an order of a court in a divorce or custody situation.
  • Section 9: This needs to be filled out by the friend or relative the parent designates as the person in parental relation. It must be notarized.

After the form is completed and notarized, the parent should make a copy for his or her own records and give the originals to the friend or relative who it designates to make educational and health decisions.

I am recommending using this form if you are worried about being arrested. It will get your children through the initial period after an arrest and it can be renewed as well. However, if you are arrested and the separation is going to be long or permanent, you may want to explore giving custody of your child to the friend or relative after an arrest. This can be done while you are outside the country, but, as I mentioned before, it will take months.

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