A new law allowing parents to designate someone to care for their child in the event they are detained or deported by federal immigration authorities will soon take effect in California.
Starting Jan. 1, the Family Preparedness Plan Act expands the type of relative who can qualify as a “caretaker” and creates a process by which a parent may nominate a caretaker to be a “temporary joint guardian” through probate court.
The new law also prohibits licensed child daycare facilities and state preschool programs from collecting information about the citizenship or immigration status of students or their family members and limits employees at these sites from cooperating with U.S. Immigration and Customs Enforcement agents.
The new law stipulates that a caretaker must be at least 18 years old and be related to the child by blood, adoption or “affinity within the fifth degree of kinship,” such as a step-parent, grandparent, great-aunt or great-great-grandparent. The child must also live with the caretaker.
Once someone signs what’s known as a “caregiver’s authorization affidavit” and self-attests that they are the caregiver, that person will have the authority to enroll a child in school and make certain school-related medical decisions for them, such as immunizations or physical exams. In some cases, the caretaker will also be able to make other medical or dental care decisions, including ones related to mental health treatment.
The caregiver’s affidavit takes effect once it’s signed by the caregiver, though a school may request additional information to confirm who the caregiver is.
To help schools verify if someone is a designated caretaker, a parent may, in advance, create a family preparedness plan and inform the school of the plan, said Jenilee Fermin, legislative director for Assemblymember Celeste Rodriguez, D-San Fernando, who authored the bill.
“The family preparedness plan should state who the chosen caregivers are in the event they are separated,” Fermin wrote in an email. “Typically, a caregiver’s authorization affidavit is completed and used when necessary.”
In cases where a parent disagrees with the caretaker’s decision on a medical-related matter, the parent will get final say — provided their decision doesn’t jeopardize the life, health or safety of the child, according to the text of the bill.
Although the legislation was born out of concerns about families being separated by immigration agents, the tools it provides parents to name a caretaker for their child may be used in other scenarios: It may also apply in cases where a parent has a serious medical condition or disability, is in the military or is incarcerated.
Rodriguez, in an interview, said the idea is to give families better peace of mind by ensuring a child continues to receive an education and health services, and to provide a sense of stability for the child, should they be separated from their parent or legal guardian.
The first-term Assembly member represents eastern San Fernando Valley, including all or parts of Sylmar, Pacoima, Sun Valley, Panorama City and North Hollywood — communities with a strong Latino presence and a number of immigrant or mixed-status families who have been heavily impacted by federal immigration enforcement activities this past year.
The immigration raids have hit home for Rodriguez in other ways as well: Her father was a young child when he watched as his grandmother was taken away by immigration agents, she said.
“He was 5 years old in Pacoima and remembers being left on his neighbor’s porch and crying himself to sleep. My dad still carries that with him, the memory,” Rodriguez said, adding that she couldn’t imagine being forced to leave behind her own young daughter.
“All of that led me to want to do something to help families,” she said.
The new law also establishes a process by which a caretaker may be granted “temporary joint guardianship” status through a probate court while the parent still retains custody of their child.
Sharon Balmer Cartagena, an attorney with Public Counsel, which co-sponsored the bill, said parents can prepare documents to nominate someone as a temporary joint guardian in advance, though the actual filing of paperwork with a probate court typically doesn’t occur until after a parent is physically out of the picture.
“The caregiver can then file the nomination with their petition for joint guardianship when it’s needed,” she said, which is usually after the parent has been detained and the family has determined it is necessary to file.
In addition to the new “temporary joint guardianship” option taking effect in the new year, the law also expands an existing state law that prohibits K-12 schools from collecting information about the citizenship or immigration status of a student or their family members and applies the law also to licensed child daycare facilities and state preschool programs.
And it stipulates that California’s attorney general must publish, by April 1, model policies limiting the ability of staff at such daycare facilities and state preschools to assist U.S. Immigration and Customs Enforcement or others who request information about a student or access to school grounds for immigration enforcement purposes. California already limits K-12 schools from assisting ICE agents.
State preschools must adopt the attorney general’s model policies, or equivalent policies, by July 1. And both licensed daycare facilities and state preschools must provide parents with information about how to access the model policies.
Although Rodriguez’s bill had the support of over 75 organizations, from early childhood advocacy and immigrant rights groups to some school districts, it ran into staunch opposition by conservatives and some parental rights advocates earlier this year who said the bill could endanger children by allowing strangers to falsely sign an affidavit claiming a child is under their care, then making education- and health-related decisions on their behalf.
The caregiver’s authorization affidavit only requires a person to self-attest, under perjury, that they are the caregiver for a minor.
The form, which does not require a parent’s signature, has been used for years in California.
The California Policy Center, an educational nonprofit, said the affidavit process “could easily allow for increased kidnapping and human trafficking of our children.” One pastor, according to CalMatters, called it “the most dangerous bill we’ve seen” in Sacramento.
Rodriguez said critics grossly misunderstood the bill’s intent and blamed the misreading on conservative right-wing social media.
“They were able to amplify a dishonest version of what this bill was aiming to do and what it would result in,” the Assembly member said. “Suddenly, this rumor was being perpetuated that it was an aim by California’s Democrats to take children out of school, without parental permission, and have them undergo sex changes.”
“The use of the word ‘kidnapping,’ or tying this to other debates, stirred up a lot of hate and fear,” added Rodriguez, who said she and her staff received a number of threatening emails and calls.
Gov. Gavin Newsom signed the bill in October, saying at the time that children “deserve to feel safe at home, in school and in the community.”
“We are putting on record that we stand by our families and their right to keep their private information safe, maintain parental rights and help families prepare in case of emergencies,” he said.