States Change Custody Laws To Keep Children of Detained Immigrants Out of Foster Care

As immigration authorities carry out what President Donald Trump has promised will be the largest mass deportation operation in U.S. history, several states are passing laws to keep children out of foster care when their detained parents have no family or friends available to take temporary custody of them.

The federal government doesn’t track how many children have entered foster care because of immigration enforcement actions, leaving it unclear how often it happens. In Oregon, as of February two children had been placed in foster care after being separated from their parents in immigration detention cases, according to Jake Sunderland, a spokesperson for the Oregon Department of Human Services.

“Before fall 2025, this simply had never happened before,” Sunderland said. As of mid-February, nearly 70,000 people were being held by Immigration and Customs Enforcement.

The record 73,000 people in detention in January represented an 84% increase compared with one year before. According to reporting from ProPublica , parents of 11,000 children who are U.S.

citizens were detained from the beginning of Trump’s term through August. The news outlet NOTUS reported in February that at least 32 children of detained or deported parents had been placed in foster care in seven states.

Sandy Santana, executive director of Children’s Rights, a legal advocacy organization, said he thinks the actual number is much higher. “That, to us, seems really, really low,” he said.

Separation from a parent is deeply traumatic for children and can lead to various health and psychological issues , including post-traumatic stress disorder. Prolonged, intense stress can lead to more-frequent infections in children and developmental issues.

That “toxic stress” is also associated with damage to areas of the brain responsible for learning and memory, according to KFF. Maryland, New York, Washington, D.C.

, and Virginia amended existing laws during Trump’s first term to allow guardians to be granted temporary parental rights for immigration enforcement reasons. Now the enforcement surge that began after Trump returned to office last year has prompted a new wave of state responses.

In New Jersey, lawmakers are considering a bill to amend a state law that allows parents to nominate standby, or temporary, guardians in the cases of death, incapacity, or debilitation. The bill would add separation due to federal immigration enforcement as another allowable reason.

Nevada and California passed laws last year to protect families separated by immigration enforcement actions. California’s law, called the Family Preparedness Plan Act , allows parents to nominate guardians and share custodial rights, instead of having them suspended, while they’re detained.

They regain their full parental rights if they are released and are able to reunite with their children. There are significant legal barriers to reunification once a child is placed in state custody, said Juan Guzman, director of children’s court and guardianship at the Alliance for Children’s Rights, a legal advocacy organization in Los Angeles.

If a parent’s child is placed in foster care and the parent cannot participate in required court proceedings because they are in detention or have been deported, it’s less likely they will be able to reunite with their child, Guzman said. An estimated 5.6 million children are U.S.

citizens who live with a parent or family member who does not have legal immigration status, according to research from the Brookings Institution, a Washington, D.C.-based think tank. Within that group, 2.6 million children have two parents lacking legal status.

Santana said he expects the number of family separation cases to grow as the Trump administration continues its immigration enforcement campaign, putting more children at risk of being placed in foster care. ICE directives require the agency to make efforts to facilitate detained parents’ participation in family court, child welfare, or guardianship proceedings, but Santana said it’s uncertain whether ICE is complying with those rules.

ICE officials did not respond to requests for comment for this report. Before the change in California’s law, the only way a parent could share custodial rights with another guardian was if the parent was terminally ill, Guzman said.

If parents create a preparedness plan and identify an individual to assume guardianship of their children, the state child welfare agency can begin the process of placing the children with that individual without opening a formal foster care case, he added. While Nevada lawmakers expanded an existing guardianship law last year to include immigration enforcement, the measure requires the parents to file notarized paperwork with the secretary of state’s office, an administrative step that may be burdensome, said Cristian Gonzalez-Perez, an attorney at Make the Road Nevada, a nonprofit that provides resources to immigrant communities.

Gonzalez-Perez said some immigrants are still hesitant to fill out government forms, out of fear that ICE might access their information and target them. He reassures community members that the state forms are secure and can be accessed only by hospitals and courts.

The Trump administration has taken unprecedented steps to access sensitive information through the Centers for Medicare & Medicaid Services, the IRS, the Supplemental Nutrition Assistance Program, the Department of Housing and Urban Development, and other entities. Gonzalez-Perez and Guzman said that not enough immigrant parents know their rights.

Nominating a temporary guardian and creating a plan for their families is one way they can prevent feelings of helplessness, Gonzalez-Perez said. “Folks don’t want to talk about it, right?” Guzman said.

“The parent having to speak to a child about the possibility of separation, it’s scary. It’s not something anybody wants to do.” KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism.

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