How do immigration‑enforcement policies address custody of minors when a parent is arrested on private property?
Executive summary
Federal immigration-enforcement policy requires officers to consider parental interests when detaining parents or guardians, encouraging—when practicable—that parents be allowed to arrange alternative care and that ICE not take physical custody of children during an enforcement action unless the child is also subject to enforcement or there is an immediate safety concern [1] [2]. In practice, the Detained Parents Directive and earlier parental-interest policies set standards but leave many custody outcomes to child welfare systems, local law enforcement, and case‑by‑case discretion [3] [4] [5].
1. How ICE policy frames arrests and parental interests
ICE’s 2025 Detention and Removal of Alien Parents and Legal Guardians of Minor Children (Directive 11064.4) explicitly instructs personnel to avoid unnecessarily infringing on parental rights, to accommodate a covered individual’s efforts to make alternative care arrangements prior to detention, and to document any transfer of physical custody when it occurs [3] [1]. The directive builds on a line of parental‑interest guidance dating to 2013 and later iterations that require ICE to facilitate parents’ participation in child‑welfare and family‑court processes where relevant [6] [7].
2. What happens at the moment of arrest on private property
When an arrest occurs inside a home, ICE guidance says officers should, absent indications of abuse or neglect, accommodate parents’ efforts to arrange care rather than immediately seizing children or transporting them with the parent; ICE personnel are instructed not to take custody or transport minor children unless the child is also being lawfully arrested [1] [2]. However, the directive leaves room for operational discretion: where safety, flight risk, or exigent circumstances exist, agents may act differently, and the decision can depend on the specific facts collected at the scene [4] [1].
3. Where children go if a parent cannot arrange care
If a detained parent cannot arrange for a caregiver at the time of arrest, local child welfare (CPS) systems typically become involved and may place children in emergency shelters, with relatives, foster homes, or other temporary settings while custody is determined in family court [5] [8]. ICE is not the primary custodian in these cases; custody determinations are ordinarily made by state family courts and child‑welfare agencies, which may struggle to locate a detained parent because ICE is not required to proactively inform CPS of a parent’s whereabouts [5].
4. Legal protections, parallel rules, and limits
Minors encountered by immigration enforcement have separate protections—most notably Flores-derived standards for conditions of care—while parents face immigration processes; the ICE directive aims to preserve parents’ ability to participate in reunification and court proceedings but does not create an independent right to avoid detention [9] [7]. Congress and courts have constrained and shaped how DHS, HHS, and state agencies may detain or place children; historical efforts to detain families together or expand parental detention authority (e.g., proposed 2018 regulations) show the legal contours remain contested [10].
5. Oversight, criticism and political context
Advocates and legal groups applaud the parental‑interest directive’s procedural protections but warn that policy language is insufficient without accountability, noting gaps in implementation, inconsistent on‑the‑ground conduct, and the broader context of aggressive enforcement that increases family disruption [6] [7] [11]. Journalistic accounts of high‑profile incidents—where children were briefly taken into federal custody or where agents’ actions were disputed—underscore how operational choices, crowd dynamics, and local law enforcement involvement can produce outcomes at odds with ICE’s stated guidance [12] [9].
6. Practical implications for families and child welfare agencies
The practical reality is that ICE policy places the initial responsibility on detained parents to designate caregivers and on state child‑welfare systems to make placements when parents cannot, but communication failures, differing incentives between federal and local actors, and the stress of enforcement can complicate reunification and legal participation by detained parents [1] [5] [13]. Stakeholders—from immigrant advocates to child‑welfare professionals—urge stronger statutory safeguards, improved interagency coordination, and oversight mechanisms to ensure the directive’s protections translate into consistent practice [7] [6].