Some states are changing their custody laws to mitigate a problem many didn’t see coming: keeping the children from detained immigrants out of foster care. It’s a move that comes as President Donald Trump promised the largest mass deportation in U.S. history.
According to an investigation by KFF, nearly 70,000 people are being held by Immigration and Customs Enforcement as of April 2026. In January, when records showed
nearly 73,000 people in ICE detention, that represented an 84% increase compared to the same time last year. According to ProPublica reporting, the parents of at least 11,000 children who are U.S. citizens have been detained since Trump took office for a second term.That’s prompting some states to amend existing laws that allow children to remain out of the foster care system.
As KFF detailed in its investigation, Maryland, New York, Virginia, and even Washington, D.C., had already amended their laws during Trump’s first term to allow guardians to be granted parental rights for immigration-enforcement purposes. Other states have joined in or are currently considering changes.
California and Nevada passed laws last year to protect families separated. In California, the Family Preparedness Plan Act allows parents to designate guardians and share custodial rights, rather than having those rights suspended during detention. Parents regain full parental rights if they’re released.
In New Jersey, state lawmakers are considering a bill to amend a state law that currently allows parents to nominate temporary guardians in the cases of death, incapacity, debilitation, and add separation due to federal immigration enforcement.
The data from the Brookings Institution show that nearly 6 million children who are reportedly U.S. citizens also live with a parent or family member who lacks legal immigration status. Within that group, nearly 3 million children have two parents who are undocumented.
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