In Illinois, a short-term guardianship can help youths during ICE deportations

CHICAGO — Operation Midway Blitz brought hundreds of federal immigration agents to the Chicago area last fall and led to more than 4,500 arrests. What happens to the children in these situations?

One option for parents is to complete a short-term guardianship form for their children to protect them should the parents be detained, deported or disappear.

What is a short-term guardianship?

Short-term guardianship refers to an adult other than the parent or legal guardian taking temporary custody of a child for up to one year. Created in the late 1980s, the standardization of this process became law under the Illinois Probate Act after extensive lobbying by AIDs activists worried about their children if they were to pass away.

“It gives families peace of mind in case there’s something that goes wrong,” Illinois attorney  Scott K. Summers said.

Summers describes the process as preparing a backup or emergency guardian. It is one legal pathway to protect children in case something happens to their parent, whether that be a military deployment, a medical emergency, arrest or deportation.

Rebekah Rashidfarokhi, the director of guardianship and immigration programs for children at Chicago Volunteer Legal Services, said the form can be easily revoked as well if needed.

Read more: Even amid partial DHS shutdown, Illinois remains on edge over ICE coming back

“The parent filling out this form gets to designate someone, and if they change their mind, they can just revoke the form and write a new one. So they’re not really relinquishing any rights by filling out a short-term guardianship,” Rashidfarokhi said.

Since the start of raids across Illinois by the U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, Rashidfarokhi reported that her group has seen a significant increase in the number of short-term guardianship forms filed. They have also been hosting frequent educational classes on what these forms are and how they work.

How does one become a short-term guardian?

To become a temporary guardian of a minor, the parent or permanent guardian of the child must fill out this form or a similar one in the presence of two witnesses over 18. This process does not need to be completed in a court of law or in front of a judge. Additionally, the form allows for the short-term guardianship to apply only under specific circumstances, such as if the parent were to be deported or arrested.

“More advanced guardianships or longer-term guardianships do require going to court, filing papers, getting a judicial appointment as a guardian,” attorney Summers said. “This gives parents autonomy and convenience.”

Summers suggests that families who are curious about this process but have concerns over the legal details should speak with a trusted attorney to get more information and advice.

Rashidfarokhi said a significant advantage of choosing short-term guardianship over alternative processes is the ease of doing so. Going through the courts can take months, cost money and require all members of the new guardian’s household to be fingerprinted.

“Parents really have a lot of discretion and control over the situation, unlike in a court process. So, the court process is kind of the opposite of all of those things,” Rashidfarokhi said.

Here’s what a short-term guardianship is not

Short-term guardianship is governed by state, not federal, law. Because of this, the new short-term guardian only has custodial privileges on the state level, and only for a year. For example, a short-term guardian could not get a child’s passport.

Rashidfarokhi also notes that the short-term guardianship is not a good idea for parents to use in cases where one parent is unaware or against assigning their child a short-term guardian.

“This somewhat flimsy piece of paper is not going to hold up in court against the parental rights of the other parent,” she said. “It’s really important to note that this is meant to be something that either both parents file or that at least the other parent is notified of, because it can actually be revoked by either parent.”

Additionally, in situations of domestic abuse, short-term guardianship is not the best option. Rashidfarokhi suggests a full custody order or an order of protection would better serve that circumstance.

“I don’t recommend using it for really long-term situations. Like, it’s meant to be kind of a Band-Aid, which is why it only lasts for a year,” Rashidfarokhi said.

How do short-term guardianships relate to ICE?

The guardianship process allows parents to list a “triggering event,” where if a specific incident happens, that begins the short-term guardianship process. Parents at risk of deportation could make their detainment their triggering event and then their chosen guardian would be able to legally take over decisions for the children.

“That’s why I’m an advocate for these short-term guardianships — it gives parents and children a lot of flexibility in terms of getting their needs met without having to go through a whole lot of effort,” Summers said.

Summers added that if a parent were to be detained or deported and this document is not pre-emptively filled out, the Illinois Department of Children and Family Services might take over as the child’s caretaker. When asked how many children DCFS have taken care of due to immigration raids, DCFS responded that this has not happened in Illinois yet.

Read more: Metro East attorney helps immigrant families prepare for crackdown

In the situation where a parent was already deported, they could fill out this form in their home country to help their child who is still in Illinois, according to the law.

Parents looking for more information or support can reach out to organizations like Chicago Volunteer Legal Services or the Illinois Guardianship and Advocacy Commission.

“I always feel like ‘better safe than sorry,’”  Rashidfarokhi said. “The form is easy to fill out. You don’t have to have a lawyer to help you fill it out. It’s free, and the parents are not giving up any rights. So I always recommend that everybody have one of these in place.”

Olivia Ardito is a graduate student in journalism with Northwestern University’s Medill School of Journalism, Media and Integrated Marketing Communications, and is a fellow in its Medill Illinois News Bureau working in partnership with Capitol News Illinois.

Capitol News Illinois is a nonprofit, nonpartisan news service that distributes state government coverage to hundreds of news outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.