Noncitizens in the United States know all too well how quickly things can unravel: Immigration agents can seize you in an instant, pulling you out of public view before you even have a chance to say goodbye to your family.

So, as he prepared to go for a check-in with U.S. Immigration and Customs Enforcement, Pedro, an unauthorized immigrant and father of two U.S. citizen children, had many pressing questions. The most excruciating one: What will happen to my children if I get arrested or deported?

"There is so much fear. My family has so little support here in the States, and it's hard not knowing what will happen next," Pedro, whose name has been changed to protect his identity over concerns about his immigration status, said in a statement provided by his attorneys.

But amid such uncertainty, Pedro took solace in the fact that he had done the paperwork necessary to designate a trusted person to take care of his children, should he get deported.

He is one of a relatively small number of noncitizens who know about a process called standby guardianship that lets parents grant temporary parental rights to people they choose ahead of time in the event they are separated from their children.

"I am so grateful that my attorney told me about these documents so my wife and I can have a plan if we are separated from them. I feel better knowing that they will be taken in by someone we really trust," Pedro said in the statement.

Unlike custody arrangements, standby guardianship does not strip parents of their custodial rights. Depending on the jurisdiction, it can last between a few weeks to a year.

Such a timeframe can be crucial in preventing the children of someone detained by immigration authorities from entering foster care, where they are far more likely to experience psychological trauma after being suddenly and indefinitely separated from their parents, experts say. Family law attorneys say parents are much more likely to lose their parental rights if their children end up in the foster care system. A standby guardianship agreement can buy time as a court appoints a long-term guardian for a child who has been left behind.

The process is not new. It has existed for decades in various states and has been allowed when parents die, become incapacitated from illness or injury, or are incarcerated. More than 30 states have laws allowing standby guardianship, a majority of them requiring only a written designation, while others also require court approval.

Only a few jurisdictions, however — New York, New Jersey, Maryland and the District of Columbia — have tweaked their statutes in recent years to add adverse immigration actions like detention and deportation to the list of events that trigger standby guardianship agreements once they're in place.

Legal aid providers say the process remains relatively unknown and underutilized, particularly within immigrant communities. But as arrests and detentions have increased amid the Trump administration's broader crackdown on unauthorized immigrants, nonprofit organizations are now ramping up outreach through hotlines and legal clinics to inform noncitizens about this legal tool, and help them use it to prepare for the prospect of being separated from their children without warning.

"There's a lot of planning around what happens in the event that someone gets detained or deported," said Carolyn Norton, the deputy chief of litigation and advocacy at Legal Services NYC, a nonprofit that assists immigrants. "The need for this kind of education and counseling is immense."

New York: An AIDS-Era Tool Adapted to Serve Immigrants

Lizbeth was only 9 months old when her parents brought her to the United States from Mexico. Now 27 and a mother to an 8-year-old U.S. citizen boy, Lizbeth still lacks authorization to live in the country despite having been a New Yorker almost her entire life.

Amid ICE raids and courthouse arrests, Lizbeth, whose last name is being withheld by Law360 because she fears deportation, recently took steps to ensure that if she gets detained, her son, who is autistic, can be placed with her sister. She was referred to the New York Legal Assistance Group, a legal aid nonprofit that helped her create a standby guardianship.

"I just want him to be in good hands in case anything should happen," Lizbeth said. "It was very difficult, but I knew it had to be done because it's for his safety, and you just never know."

Lizbeth said she made peace with the idea of going back to her country of origin. Bringing her son along with her would avoid a separation, but at the same time, she said, it would deny him opportunities for kids with autism and special needs that exist in New York. Having to return would also be alienating for her, because she doesn't have any direct knowledge of Mexico.

"It would be nice to know my roots, but I do love this country and everything that has come with it," she said. "New York is all I know. So is the U.S."

In New York, standby guardianship traces its roots to the height of the AIDS epidemic. A law passed in 1992 created a process for parents who had AIDS or other serious or terminal illnesses to designate a person to serve as a guardian for their children in the event they became incapacitated or died.

"We, sadly, watched many parents who were ill or even dying and want to make plans for their children," said Randye Retkin, co-director and founder of LegalHealth, an NYLAG division that provides free legal assistance to low-income New Yorkers with serious or chronic health problems.

Retkin was among the advocates who drafted New York's standby guardianship law. Then, in 2018, as immigration enforcement surged during President Donald Trump's first administration, Retkin helped spearhead an expansion of the standby guardianship statute to assist immigrant families.

"We witnessed immigrant parents feeling the same sense of anxiety about what would happen to their children if they were either arrested or deported or detained because of immigration enforcement," Retkin said. "We thought that the standby guardianship law would be a great tool to provide that sense of planning for their children."

Legal aid providers say the process was not widely used during the first Trump administration. But amid the current heightened immigration enforcement, nonprofits like NYLAG and Legal Services NYC have been more involved in ensuring that noncitizens have access to this legal tool.

Since February, NYLAG has been actively assisting noncitizens in setting up standby guardianship agreements, according to its attorneys.

NYLAG lawyers are embedded inside hospitals serving large immigrant communities where standby guardianship has become part of a broader strategy to stabilize families amid the uncertainties they face. Noncitizens can call a hotline to learn about standby guardianship and get referred to pro bono lawyers who can help them execute the necessary documents, free of charge.

"We can give parents a little bit of peace of mind, where they can execute these documents and have a little bit of safety," said Julie Babayeva, a supervising attorney at NYLAG's LegalHealth.

To enter a standby guardianship agreement, the parent or caregiver must provide documentation about themselves and their children, as well as information about the person designated to be the potential guardian, and fill out standby guardianship forms. There's also a chance to name an alternate guardian if the primary guardian is unable to take on that responsibility.

The documents get signed in front of witnesses and notarized. Parents are advised to give the original copy of the guardianship documents to the designated guardian. The power of the guardian goes into effect right after an administrative separation — the result of an arrest, or detention.

In New York, a standby guardianship lasts for 60 days from the time it goes into effect. Within that timeframe, standby guardians must file petitions with the Family Court and to the Surrogate Court to be appointed long-term guardians and become custodians of any property left behind.

At that stage, secondary caregivers can also file petitions to gain custody of the children of a person who's been arrested or deported, a more permanent arrangement where a guardian gains full decision-making over a child. Courts deciding on custody look at standby guardianship agreements as a strong proof of the will of parents who can no longer care for their children.

"The standby guardianship document that we execute together is a great way to show the parents' intent that this is who they would really want to have their children should something happen to them," Babayeva said.

Babayeva emphasized that immigration authorities do not have to notify a person's family after detaining them, and that an official notice from ICE is not needed to trigger a standby guardianship agreement.

Legal aid providers tell noncitizens that in addition to filing the necessary paperwork, they should make plans with their children, family members and standby guardians to account for the possibility that they might be detained.

"We always advise the parents to make sure that they have plans in place, especially if they know that they're going into an ICE check-in," Babayeva said. "We do sort of talk to the parents about how that might look."

Those conversations are often difficult, Babayeva said. She recalled a mom and a dad, both unauthorized immigrants, who met with her during a legal aid clinic. The parents had brought their three children with them, because they had no one to watch them while they arranged a standby guardianship. Once they completed the paperwork, the father started crying. The man said he was due for a check-in with ICE and feared he would be separated from his children — but that having the standby guardianship agreement in place gave him a measure of relief from that uncertainty.

"This made him feel a little bit more calm about going because he knew that someone else, like someone that they trust, would look over the kids," Babayeva said. "It was very touching and very emotional."

NYLAG has assisted about a dozen families every month with setting up standby guardianships since the organization began its push in February.

Norton of Legal Services NYS told Law360 that standby guardianship is just one part of a broader family-preparedness strategy that has become essential amid heightened immigration enforcement.

Guardianship agreements work alongside other steps families take to prepare for the possible detention of caregivers. Noncitizen parents, for example, are encouraged to keep updated emergency contacts, ensure that trusted adults have information about their children's medications and allergies, secure travel documents, and designate alternate authorized adults to pick up their children from school.

"When we talk about helping someone think through all the possibilities, there's kind of going through all the options that could exist to make sure that a child has someone to care for them," Norton said. "Having these individual conversations with clients and having to think through the worst-case scenario is just really difficult, but it's also incredibly important to do in advance."

Maryland: A Law Rebuilt to Meet a New Kind of Emergency

Maryland's standby guardianship law was also tweaked in 2018, when immigrant families in the state began living with a level of fear they had not experienced in years. Parents in Takoma Park, Silver Spring and other heavily immigrant communities in the state worried not only about being arrested, but also about what would happen to their children if they were taken suddenly at a construction site, outside a grocery store, or on the way to work.

"The parents in one of the schools were just terrified that they would be picked up at work, and their children would be left at home," said Cam Crockett, a longtime immigrant rights advocate who directs the Standby Guardianship Project, and one of the people who spearheaded the legislative change in the state. Like in New York, standby guardianship in Maryland was created to assist parents who were terminally ill amid the AIDS epidemic.

But unlike the process in New York, standby guardianship agreements in Maryland do not require court approval. The law allows parents to sign a form downloadable from the court's website, where they can name someone they trust to care for their children if they have an adverse immigration event. The document stays in place until a child turns 18, and remains dormant unless the parents are separated from the child, in which case the standby guardianship kicks in and lasts six months.


"It doesn't solve the whole problem for these parents, but what it does is protect their children in a very extreme emergency of being separated from their parents, and allows them to reduce the trauma that the children are experiencing," Crockett said.

By checking boxes on the guardianship form, parents can give the designated guardians the power to make decisions on medical issues involving the children, enroll them in school, apply for and receive public benefits, or travel nationally and internationally with the children.

Crockett said that by entering into standby guardianship agreements, parents keep all of their legal rights.

"If the children go into the foster care system, there's a much greater chance that parents could actually lose their rights to their children," she said.

On the website of the Standby Guardianship Project, a brochure titled "PROTECT YOUR CHILDREN" warns noncitizen parents that not having agreements in place could result in their children being placed in foster care.

"Such placements could result in trauma to the child, undercut the parent child relationship and have long term effects on the child's future well-being and development. In cases where no one is given legal authority to care for the children, there could be problems enrolling the child in school or obtaining emergency or routine medical care," the brochure says.

Crockett, who has spent the last seven years trying to inform legal professionals and immigrant communities in Maryland about standby guardianship, said the process is still underused.

"The hardest part is getting people to trust and to go and do the form. I'll even do them remotely. People can call me on the phone and I will do it with them," Crockett said.

She said immigrants who know about it but refuse to engage with it are "in denial." Fathers are particularly resistant to the idea of shifting responsibility for their children to other people, even when facing the prospect of being separated from them. Other times, parents simply disagree with each other on how to raise their children, which prevents them from seeking standby guardianship agreements.

One recent morning, Crockett had to send a standby guardianship form to a man detained at an ICE detention center in Farmville, Virginia. The man, who has lived over 22 years in the U.S. without any criminal record, was taking his wife to work when he was pulled over and detained. He desperately needed help to designate a guardian for his children because had failed to plan ahead.

But those who do plan ahead don't regret it, Crockett said.

"I am getting testimonials from people who have done it and then have been picked up by ICE and the difference it's made for their families," she said.

In one of those testimonials, an undocumented man whose name Crockett would not provide said he resisted making a plan for his family because he didn't think he needed one.

"​​I thought that as long as I focused on working and stayed out of trouble, I'd be fine," the man said. But he understood the need to establish guardianship after learning about the wife of an acquaintance who was detained, unraveling the lives of her family members who depended on her, including her children.

By the time the man was himself detained and later deported, he had a standby guardianship agreement that ensured his children and his business were taken care of.

"When I was able to contact my family, I was very happy to know that my business was in good hands and that my children were in a safe place," the man said in his statement.

A More Urgent Need Sometimes Means More Hesitation

Washington, D.C.'s adaptation of standby guardianship to the needs of immigrant families was the culmination of advocacy that traces its roots to Central American migration but that solidified during the first Trump administration.

The Central American Resource Center, also known as CARECEN, a nonprofit that was created in the early 1980s to address an influx of migrants from El Salvador and other Central American countries fleeing civil wars, has been crucial in spurring legislative efforts to create a standby guardianship in the district.

Those efforts culminated in the enactment of the DC Standby Guardian Amendment Act of 2020, which expanded the district's standby guardianship law to allow parents to designate a standby guardian in cases of adverse immigration action, incapacitation, or death.

Abel Nuñez, CARECEN's executive director, told Law360 that migration patterns disrupt the informal caregiving networks common in Central America, where children grow up in multigenerational homes where family members can step in whenever there is a need. Latino parents in the U.S. often find themselves alone in rearing their children.

As immigration enforcement intensified under the first Trump administration, CARECEN began to see increasing fear among families worried about sudden detention. That created an urgency for enacting a standby guardianship process, Nuñez said.

The need was clear: If a parent were detained, they could lose access to their children instantly.

"The moment you are detained, you lose your freedom. You lose your ability to have a phone and be making phone calls. So you must prearrange the care of your children by leaving a guardian to take care of that," he said.

This reality drove D.C. lawmakers, guided by CARECEN and other advocates, to modernize the guardianship statute to include an immigration-related trigger. The law they designed activates specifically upon immigration detention.

But awareness remains a persistent barrier. Many parents do not know the program exists. Others fear engaging with formal systems. Some assume they will never be targeted.

Nuñez has observed a shift since the early Trump era. At that time, families approached standby guardianship as a precaution, something distant but prudent. Today, with interior enforcement escalating, paradoxically fewer families are completing the paperwork.

"It's counterintuitive," he said. "We see a lot of families hesitating, and I think it is primarily because it's a traumatic experience, because they know that this is almost real, because they know someone that has been detained, someone that has been disappeared by ICE enforcement or immigration enforcement."

Instead, CARECEN is flooded with calls after a parent has already been detained, when standby guardianship may no longer be useful, Nuñez said.

Without a guardian, he added, authorities may have no choice but to place children under state supervision.

"If there are no family members able or willing to take charge, again, unfortunately, the state has to step in," Nuñez said.

--Editing by Marygrace Anderson.

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