Planning for Custody and Care of Children: an Informational Guide for Immigrant Families

What is child custody?

Custody refers to who has care and control of children. Legal custody is who gets to make major decisions about the child’s education, health, and religion. This can be sole (only one person) or shared (more than one person has a say in these major decisions). Physical custody is who has the child, and can be sole (only one person), shared (two or more people share somewhat equal time with the child), primary (more than 50% of the time), partial (less than 50 percent of the time) or supervised partial custody (some amount of time is spent with the child but it must be supervised by another person or by the court). More information about custody in Pennsylvania may be found here: https://courts.phila.gov/pdf/brochures/dr/custody-brochure.pdf

Why is it important to have a custody order?

In the event a parent(s) is detained or deported, a child may be left behind in the care of a family member or other caregiver. Without an order, that person may not be able to provide proper care for the child, to consent to medical care or make educational decisions, or to obtain a passport for the child and have the child travel out of the United States.

Who has custody rights if there is no custody order?

If a custody order has never been entered in a court, both parents have equal rights to a child, even if the biological father’s name is not on the child’s birth certificate.

IF THERE IS NO CUSTODY ORDER, BOTH PARENTS HAVE EQUAL RIGHTS TO THE CHILD. NO ONE CAN FORCE A PARENT TO GIVE A CHILD TO ANOTHER PARENT OR TO ANY OTHER PERSON WITHOUT A COURT ORDER.

In order to file for custody, a father must acknowledge paternity if his name is not on the birth certificate. Even if a father is not named on a child’s birth certificate, a person seeking custody must name both parents and both parents must be served and given a chance to participate in a custody proceeding. More information about paternity may be found here: https://courts.phila.gov/pdf/brochures/dr/Paternity-Brochure.pdf

Who can file for custody of child?   

In PA, only parents have the right to file for custody of a child, and grandparents often have the right to seek partial custody or primary custody, under certain circumstances. All other people do not, unless they can show they stand in loco parentis to the child, which means they have assumed the role of a parent, with the parent(s)’ consent. Whether a non-parent stands in loco parentis is often an issue the court must decide and is based on the specific facts of each case.

What if one parent lives in different state or county or that parent’s whereabouts are unknown?

A parent can still file for custody in Philadelphia if Philadelphia is the child’s “home state” – usually that means that the child has lived in the home state for at least the past 6 months, even if the other parent lives somewhere else, including outside of the United States. There are many exceptions to this general rule and whether or not Philadelphia is the proper place to determine custody will depend on the individual family’s situation. All information a person knows about the address of the biological parents must be put in a custody petition and all efforts must be made to serve the parents with the custody petition and notices to appear for a custody proceeding. If a parent’s address or identity is not known, that must be put in the petition. If a parent resides somewhere where service is not possible either by a person or by mail, the person seeking custody must give the court this information and may ask to have a custody order entered even though that parent is not able to be served. A custody order may be obtained even if the child is not a U.S. citizen or has dual citizenship.

What happens when a parent becomes unavailable?

This is a complicated question, as there are many options, and each family’s situation is different. If a parent has a mental or physical illness, PA has a Stand-by Guardianship Act that allows a parent to designate a caregiver if the event of parent becomes too ill to care for a child or dies.

See http://www.aidslawpa.org/get-help/legal-information/standbyguardianship/ for more information on stand-by guardianship. Unfortunately, there is not currently a similar law for parents who become unavailable for other reasons.

There is no simple way to designate a “temporary guardian” for a child, and Pennsylvania’s custody law does not use that term. If a parent is detained or deported, the parent(s) and the caregiver may try to sign a document granting the caregiver authority to make decisions regarding the child and to care for the child, or the caregiver may wish to file for custody.

If no one is available to care for the child, Philadelphia’s Department of Human Services (DHS), or the local child welfare agency in your county (sometimes called Child Protective Services “CPS” or Children and Youth Services “CYS” may file a dependency petition to take emergency temporary custody.  A child may be placed in foster care, kinship care, a group home, or a residential treatment facility. There will be a court hearing, and the parent(s) will have a right to an attorney.  However, a parent’s ability to regain custody of a child may be limited if the parent(s) are detained or deported.  It is important that parents seek the advice of a lawyer right away if children are placed in the custody of DHS.  See below for more information.

What can a parent do to be prepared in the event of being detained or deported?

There are several things parents can do to be prepared, including thinking about whom an appropriate caregiver would be in the event both parents are not available, gathering information about options, and having a plan. Parents may also want to have passports and other documents discussed below prepared so a family member or caregiver may properly care for a child. There is a lot of information regarding preparing a plan for your family here: https://www.ilrc.org/sites/default/files/resources/family_preparedness_plan.pdf

How do I find out if my child is in DHS custody (“foster care”)?

If you are not sure if your child is in DHS custody, you can contact DHS at 215-683-6100 or 215-683-4DHS(4347). 

What does it mean if my child is in DHS Custody?

Children are removed from their homes when there is a concern about their safety.  Immigration status should not be a factor in a DHS investigation, unless a parent is detained or in deportation proceedings, and the children do not have anyone to care for them. 

In Philadelphia, the agency responsible for ensuring child safety is the City’s Department of Human Services, also known as “DHS”.  If parents get detained or arrested, and there is no plan in place for a family member or friend to care for the children, DHS will get an emergency order for temporary custody from Family Court.  After this emergency order is obtained, there will be a Court hearing within 72 hours.  Parents have a right to a lawyer and to participate in these hearings.  Non-English-speaking parents have a right to an interpreter to assist them at the hearings. 

How do I find out about my Court case?  Who is my lawyer?  When is my Court hearing?

You can call Dependency Court Operations (DCO) at 1501 Arch Street, where all child welfare hearings are held, at 215-686-4119. DCO can give you contact information for your lawyer and tell you when your next hearing is. If you don’t have a lawyer, you can ask DCO how to get one.

How does DHS decide where to place my child?

When possible, DHS will try to place your children with a family member or good friend.  It is important that you speak with your DHS investigator or CUA case manager about family members and friends who might be willing to care for your child.

How can I get my children back, after they are placed in DHS custody?

In most cases, the goal is to help you get your child back (“reunification”), and DHS must provide you with support to reunify. But the law puts limits on how long DHS will work with you on reunification. If DHS rules out reunification, they will look for another permanent home for your child, usually through adoption or permanent legal custody (PLC).

While your children are in foster care, you should visit with your child as much as possible. You should also contact your child on a regular basis by phone, letter or cards. It is also important that you work on your Family Service Plan (FSP) goals, which vary case by case. You should also stay in touch with your DHS worker, your agency worker, and your attorney. It’s really important to tell everyone about your progress and also ask for help in meeting your goals when you need it. If you can’t call your DHS worker, you should write letters. Be sure to let your worker how you are doing, and also to ask the worker how your child is doing and what you can do to help your child while you are apart. You have a right to participate in planning for your child. As much as you can, you should try to participate in medical, educational, and other decisions about your child.

What Does Termination of Parental Rights (TPR) mean?

Termination of Parental Rights (TPR) is a legal decision a judge makes to forever end the parent/child relationship so that the child can be adopted. The adoptive parent then becomes the child’s legal parent. Your parental rights can be terminated voluntarily (meaning you agree) or involuntarily (after a hearing where you disagree and the court decides).

Can My Parental Rights Be Terminated Just Because I am Detained or Deported?

This is a complicated question. In general the law requires evidence that (1) a parent is either unfit or unwilling to care for her child and (2) that it’s in the child’s best interest to grant TPR. The fact that a parent is detained or deported is not by itself evidence the parent is unfit or unwilling. The court will look carefully at the efforts you've made from detention or from abroad to meet your goals and maintain a relationship with your child.

If your child was taken into custody by DHS in Philadelphia, and you have questions about what to do, Community Legal Services may be able to help.  CLS has a hotline for parents from 9am-5pm: 215-981-3765. More information about how to deal with DHS may be found here: http://www.phila.gov/dhs/pdfs/DHS%20Parent%20Handbook%20LowRes.pdf

Non-court options

A parent may wish for a family member or friend to care for their children if they become unavailable because of detention or deportation. Beware of paying a notary for a form that designates someone as a caregiver. Such a form may not be accepted by schools or doctors, and it is NOT a custody order and is NOT enforceable by a court, though it could be used as evidence to show what a parent intended or wished to have happen if the caregiver does file for custody.

The Philadelphia School District has a form to designate a person to have authority for decisions regarding a child. That form may be found here http://www.phila.k12.pa.us/forms/EH-92.pdf

A person caring for a child may be able to obtain public benefits for a child, including TANF and food stamps, and does not need a custody order to do so. More information on public benefits may be found here: https://clsphila.org/get-help/cash-assistance

Pros: This option may allow the non-parent family member or caregiver to have the authority to make decisions on a temporary emergency basis without actually being granted custody and having to go through the court. It could be used as evidence of parent/s’ wishes if the caregiver does file in court.

Cons: The caregiver does not have a custody order, thus may not be permitted by a school, doctor or other provider to act on behalf of the child. It is not enforceable in court.

This option also may grant the caregiver in loco parentis status, and that person may be permitted to seek custody of the child even if the parent(s) did not wish to have a custody order entered.

A sample of a form to allow a family member or caregiver to have authorization from the parent(s) to care the child, at least on a temporary basis, may be found here:

https://philalegal.org/html/Temporary_Guardian_Custodian_of_Minor.docx

A sample form for granting a caregiver authority to consent to medical care for a child may be found here: https://philalegal.org/html/Medical_Consent_Minor_Children.docx

A sample form revoking the medical consent may be found here:

https://philalegal.org/html/Medical_Consent_Minor_Children.docx

Court options - Enter into an Agreement with a Family Member or Caregiver

A parent may want to enter into a custody agreement with a family member or caregiver prior to or after being detained or deported. This may be an option, but parents should know an agreement may not be accepted without both parents’ signatures (in most circumstances) and each person’s signature must be notarized unless an attorney is preparing the agreement. There must also be an underlying petition for custody pending or filed at the same time as the agreement.

Here is information on paternity http://courts.phila.gov/pdf/brochures/dr/Paternity-Brochure.pdf

Pros: Parties can be sure the family member or caregiver will have the authority to make decisions  and act on behalf of the child, including for school and healthcare, and will be able to get a passport and authorize travel.

Cons: Allowing a family member or caregiver to have any form of custody by a court order then clearly gives that person in loco parentis standing. If the family member or caregiver does not agree to return the child to a parent or to enter into a new custody agreement, it will be up the court to decide who should have custody.

If a child’s parents are not available for an agreement, a person who is caring for the child may file for custody at Family Court at 1501 Arch Street.

There are custody forms and filing assistance available every day from noon to 3:00 p.m. at the Family Court Help Center located on the 11th Floor. You may find the necessary forms for filing for custody and other information here http://courts.phila.gov/forms/

In general, although there is no guarantee a court will not inquire about a party’s immigration status, undocumented parents or caregivers may access the court and a party’s immigration status should not be a factor in a custody matter unless a party is detained or in deportation proceedings.

In order to travel outside of the United States, a child needs a passport and many airlines require both parents to be there, or that the person traveling with the child have a letter from the parent(s) authorizing that person to travel with the child.  A sample letter of consent may be found here:

https://philalegal.org/html/Sample_letter_of_consent_to_travel.pdf

Both parents must sign a passport application for a child, unless one parent or another party has SOLE legal custody. There is a special circumstance form to avoid this requirement but this option is very limited and is difficult to have approved. Parents should obtain their child(ren)’s passports as soon as possible to avoid problems with obtaining a passport in the future if they think it will be needed. It may also be helpful to have the child(ren)’s passports from the home country available if the child is a citizen from that country or has dual citizenship. All the above applies whether or not the father’s name is on the birth certificate. More information about passports and links to apply may be found here:

https://travel.state.gov/content/passports/en/passports/under-16/under-162.html

Parents and legal custodians of children may not relocate out of the area if it will make it difficult for any other parent or caregiver to exercise their custody of the child(ren). This means, even if there is no custody order, one parent or caregiver cannot remove a child without the other parent(s)’ and caregiver’s consent or with the court’s permission. There is a very specific process that must be followed in PA regarding requests to relocate. If this process is not followed, the left-behind parent or custodian may file to have the child returned to this area.

There is an international custody agreement called the Hague Abduction Convention which the U.S. and 76 countries have signed. It can help a parent whose child has been taken abroad in violation of their parental rights. More information about international custody issues, and a list of countries which are signatories to the Convention, may be found here:

https://travel.state.gov/content/childabduction/en.html

Here are some places you may contact for help. There are very few free legal services organizations that are able to assist undocumented parents in custody matters. Some of the below organizations do not specialize in family law and may not be able to assist with custody but may be able to assist with other issues and provide general information.

Here are some more links which may be helpful:

DISCLAIMER: This packet is intended to give basic information under Pennsylvania law about custody of children and how to plan for and or deal with a change in circumstances due to a parent’s sudden or expected absence or inability to care for her/his children and is not intended as legal advice. You should seek legal advice from an attorney.