How do ICE protocols govern custody of children when parents are arrested during immigration operations?
Executive summary
ICE’s written protocols say agents should prioritize placing children with a designated caregiver and not transport children as a default when parents are arrested, and the agency maintains custody data and a parental-interest directive that govern these decisions [1] [2]. In practice, legal limits like the Flores settlement and contrasting accounts from parents, schools and local officials mean children have sometimes been detained or moved with arrested adults — prompting court orders, UN concern and advocacy guidance telling parents what rights they have [3] [4] [5] [6].
1. What the agency’s rules say: custody determination and parental-interest guidance
U.S. Immigration and Customs Enforcement publicly frames custody decisions as part of its detention-management system: once a person is transferred into ICE custody the agency makes a custody determination and uses limited detention resources to decide who to detain, with attention to public-safety and flight-risk factors [1]. ICE also issued a specific “Detained Parents Directive” and parental-interest materials that identify likely inquirers and set procedures for handling dependent children of detained parents, indicating the agency recognizes an administrative process for custody questions [2].
2. The legal guardrails: Flores, INA and limits on holding minors
Minors in federal custody are protected by long-standing legal constraints, most notably the Flores settlement which creates specific protections for immigrant children in custody, and the Immigration and Nationality Act’s provisions that guide mandatory detention categories — legal frameworks ICE must navigate when deciding whether to detain a child or keep a family unit together [3] [1]. These laws do not eliminate discretion or operational disagreements, however; they set baseline protections, particularly for unaccompanied minors, that shape ICE’s options [3].
3. What happens in the field: policy versus practice in high-profile arrests
Recent enforcement operations in Minnesota and elsewhere show how field realities diverge from agency statements: school officials and families reported children taken or transported with arrested parents in several cases, while DHS and ICE said parents were offered the opportunity to place children with another adult or to have them detained with the parent, and that children were not intentionally targeted [7] [8]. Courts have intervened in individual cases — including orders for release of a detained five-year-old and emergency filings to reunite toddlers with parents — illustrating that on-the-ground choices about whether to keep a child with a detained parent, hand them to a designated caregiver, or transfer them into ICE custody remain contested [4] [9].
4. Rights, guidance and stopgaps offered by advocates and schools
Advocates and legal organizations advise detained parents that ICE policy says officers should not take a child into custody simply because the parent is arrested and that parents can make custody decisions at the time of arrest — including designating an adult to care for the child — while also encouraging power-of-attorney and other preparations to avoid disruption [6] [10]. Schools and districts have responded by educating families about rights and, in some cases, suing DHS alleging broken pledges that agents would stay away from campuses, signaling local pushback and alternative protections being pursued by communities [10].
5. Where rules fray: criticisms, human-rights concerns and data shifts
Independent experts and human-rights bodies have flagged a sharp rise in children in federal custody and documented practices that may pressure minors or reduce releases to caregivers, with UN-appointed experts and reporting noting increases in custody durations and allegations such as financial coercion to self-deport — criticisms that suggest agency protocols are being applied differently amid intensified enforcement [5] [11]. Policy changes that broaden arrest locations and expand family detention capacity also create practical conditions where more children may be taken into federal custody, a trend highlighted by watchdogs and legal analysts [12] [11].
6. Bottom line: protocols exist but outcomes depend on law, discretion and oversight
ICE’s formal protocols and parental-interest directives establish a framework designed to prioritize custody decisions and avoid automatically detaining children with arrested parents, and the Flores settlement supplies legal protections for minors, but the record of recent operations shows sizeable gaps between written policy and outcomes; when disputes arise they are resolved through emergency filings, court orders and public scrutiny — and the balance among agency discretion, local actors, legal rights and political priorities ultimately determines whether a child stays with a caregiver, is briefly held with a parent, or enters federal custody [2] [3] [4] [5].