What are the legal rules governing ICE custody of children when a parent is arrested?
Executive summary
The principal legal framework governing what happens to children when ICE arrests a parent is ICE’s Detained Parents Directive (Directive 11064.4), issued in July 2025, which sets internal agency protocols intended to protect parental rights during arrest, detention, and removal proceedings [1] [2]. That directive requires officers to facilitate parents’ ability to arrange care, keep detained parents near their children and enable contact and visitation, but it is internal policy (not a statute) and can be changed or rescinded by ICE at any time [1] [2].
1. What the 2025 Detained Parents Directive actually requires
ICE’s Directive 11064.4 instructs officers to avoid unnecessarily infringing on parental or guardianship rights, to allow parents to make arrangements for their minor children at the point of arrest, to document detention and removal actions, to use the ICE Detainee Locator, and to coordinate with child-welfare agencies, consulates, and detention staff to facilitate communication and visitation between detained parents and their children [2] [3] [1]. The policy specifically directs arresting officers, where feasible, to wait while a parent arranges alternate care for a child and to detain parents near the location of the arrest when possible to facilitate contact [4] [5].
2. Rights and practical supports the directive says parents should have
Under ICE guidance parents are to be allowed to identify a caretaker, to stay involved in state child-welfare proceedings while detained, and to access tools and forms—such as delegation of parental authority forms and the “Detained or Deported: What About My Children” toolkit—to help secure care arrangements and legal participation [6] [7] [8]. ICE materials and NGO checklists emphasize facilitating visitation with minors and the ability for detained parents to make decisions about custody and care from detention [4] [9] [8].
3. Limits, legal status, and oversight gaps
The Detained Parents Directive is agency policy guidance rather than binding law: ICE itself notes the directive provides internal guidance that may be modified or rescinded without notice, which means compliance depends largely on ICE practices and oversight rather than a statute courts must enforce [1] [2]. Advocacy organizations and checklists exist precisely because the directive’s protections are nonbinding and require monitoring and enforcement by child-welfare, legal advocates, and courts to be effective [9] [10].
4. Conflicts with other legal regimes and enforcement realities
Family-detention rules and immigration enforcement do not exist in isolation: the Flores Settlement limits how long children may be held in government custody in family detention settings (widely cited as a 20-day rule), and the directive must be operationalized alongside detention management standards and state child-welfare procedures—creating friction when enforcement is rapid or resources are limited [11] [12]. Reports of instances where children were taken into ICE custody or separated from parents highlight how policy can break down in practice and spur litigation and public controversy [13] [11] [14].
5. Competing narratives, accountability, and practical advice for advocates
ICE and DHS present the directive as a balance between enforcement and family stability, emphasizing tools like the detainee locator and on-site coordinators; advocates and legal groups counter that nonbinding directives, inconsistent field application, and insufficient oversight leave children vulnerable, so they recommend using the directive as an advocacy lever in courts and child-welfare proceedings and tracking compliance with checklists from groups like the Women’s Refugee Commission, ILRC, CLASP, and NILC [1] [9] [4] [10] [7]. Where specific incidents occur—such as high-profile cases reported in the press—those facts must be assessed against the directive and other legal rules rather than assumed to reflect consistent practice [13] [11].