States rewrite custody rules as immigration arrests push children into foster care

Immigration arrests under Donald Trump’s mass deportation campaign are creating a child-welfare problem that states are now trying to blunt: when parents are detained and no relative or family friend can move fast enough, children can end up in foster care. Federal agencies do not track how many children enter care because of immigration enforcement, leaving the scale unclear even as Oregon officials said two children had been placed in foster care after detention-related separations as of February, something the state said had never happened before fall 2025.

The rise in detention has been sharp. Nearly 70,000 people were being held by Immigration and Customs Enforcement by mid-February, and the record 73,000 in January marked an 84% increase from a year earlier. ProPublica reported that parents of more than 11,000 U.S. citizen children were detained from the start of Trump’s term through August 2025, while NOTUS said at least 32 children of detained or deported parents entered foster care in seven states over roughly the past year. Child-welfare advocates say those counts are almost certainly too low because many cases never surface in a public tally.

The stakes extend well beyond a custody filing. Children’s Rights says child psychologists have long warned that detention for even two weeks can produce severe developmental and health consequences that last a lifetime. Advocates say separation can trigger toxic stress, post-traumatic stress disorder and problems with learning and memory, which is why the question of who signs for a child is also a question about long-term health and stability.

States are responding in different ways. Maryland, New York, Washington, D.C. and Virginia changed their laws during Trump’s first term to allow temporary guardians to assume parental rights in immigration-enforcement situations. Nevada and California passed protective laws last year, and New Jersey lawmakers are now weighing a bill that would let parents nominate standby guardians if federal immigration enforcement splits up a family. In California, the Family Preparedness Plan Act of 2025, known as AB 495, expands caregiver authorization affidavits to include nonrelative extended family members and creates a new form of joint guardianship that lets custodial parents name a temporary guardian without giving up parental rights.

California officials said in 2026 guidance that AB 495 applies when families are separated by immigration enforcement and also covers absences tied to disability, military service and incarceration. The issue is especially pressing there because committee analysis said nearly half of California children have at least one immigrant parent. That makes the law less of a niche fix than a statewide family-safety measure.

The detention system itself has grown fast enough to overwhelm easy oversight. The Vera Institute of Justice said ICE detained people in 1,490 facilities between Oct. 1, 2008 and March 10, 2026, and that in March 2026 it held an average of more than 1,000 people per day in 20 facilities across 11 states, 19 of them operated by for-profit companies. In Oregon, Gov. Tina Kotek and more than 30 mayors demanded on Feb. 5 that federal immigration enforcement stop until recent use-of-force incidents were investigated. For child-welfare workers, courts and families, the practical problem is immediate: keep children out of foster care while parents fight cases or are removed, and do it before a detention order becomes a permanent rupture.