As a divorce attorney on Long Island, I know that international travel with your children can become a complicated issue in your divorce or child custody matter. While, ideally, parents can work out agreements about international travel on their own, sometimes they disagree about when and how their child can leave the country. The government has several procedures in place that will allow your child to obtain a passport and travel internationally while protecting the parents’ rights to ensure their child’s safety. Here are some key facts that you should know when it comes to your child’s international travel.
#1. Obtaining a Passport for a Child Requires Consent of Both Parents/Guardians in Most Cases
Both parents must give their consent for a child to obtain a passport. Ideally, both parents will go with the child in person when the child applies, but this is rarely the case with divorce parents. If one parent cannot appear in person, they can sign a form known as a “Statement of Consent” (Form DS-3053) in the presence of a notary public, which the appearing parent can then present at the time of the application. A copy of the non-appearing parent’s identification is also required.
if the other parent cannot appear and cannot be located to sign the Statement of Consent, you may be able to submit a form known as “Statement of Exigent/Special Family Circumstances” (Form DS-5525) to describe your circumstances and possibly provide additional documentation. Exigent circumstances may include incarceration of the other parent or a restraining order.
#2. If One Parent Cannot Appear, Proof of Consent or Court Authorization is Required
In cases where one parent has sole legal custody, the other parent’s consent will not be required. Instead, the parent with sole legal custody will be required to submit proof of
- a court order granting sole legal custody or specifically authorizing one parent to obtain the passport
- a copy of the child’s birth certificate or adoption decree listing the parent as the only parent; or
- a certificate of death of the other parent. The parent with sole legal custody can typically obtain a passport over the non-custodial parent’s objection.
If neither parent can appear to apply for the child’s passport, a third party may be able to do so for them. A notarized statement from both parents/guardians authorizing the third party to apply for the child will be required, supported by copies of both parents’ identification. This written authorization must be less than three months old in order to be effective.
#3. Courts Can Resolve Passport and Travel Disputes
For parents with joint legal custody who disagree about whether the child should travel, a New York state court judge can decide what is in the child’s best interests and make an order either
- authorizing a parent to obtain a passport for the child over the other parent’s objection or
- restricting the child’s international travel
If the judge feels there is a “flight risk” or that one parent will not bring the child back to the United States, he or she can restrict the child’s travel. The court might find a “flight risk” if there is dual citizenship or if the planned travel is to a country that does not participate in the Hague Convention (a treaty that requires participating countries to follow the same rules in terms of returning children to their countries).
Courts can either authorize or deny the right to travel internationally with a child when there is a possibility that international travel is an issue. Even if there is a just a remote possibility of international travel becoming an issue, speak to your attorney about whether you should ask a court to authorize or impose a restriction on international travel. Courts can also make detailed determinations about where, when, and how a parent can take a child out of the country, and even require a travel itinerary be submitted to the court. It is best to raise this issue ahead of time, before international travel becomes a source of conflict, so that the issue has been clarified when it is time to travel (or not to travel).
#4. Parents Can Set Up Alerts through the Children’s Passport Issuance Alert Program
If parents disagree as to whether their child should be issued a passport, and if a court has not yet made a custody determination or otherwise decided the issue, a parent who objects to the issuance of a passport has a remedy available. The concerned parent can register the child at risk with the Children’s Passport Issuance Alert Program, a program of the U.S. State Department, by providing the child’s identifying information and other supporting information showing that the other parent does not have the authority to take the child out of the country. Once the child is registered, if anyone, including the other parent, attempts to obtain a passport for that child, the State Department will notify the objecting parent, who will have the opportunity to take steps to prevent the issuance of the passport.
#5. Contact Law Enforcement and Airline Security
If you believe that your child is in danger of being abducted by his or her parent, legal guardian, or someone else, there are steps you can and should take to prevent it. If you believe that such an abduction is imminent, you can and should contact the police as well as the airline and airport security. You can report your child as a missing person in the National Crime Information Center so that law enforcement begins searching for your child. Make law enforcement aware of your court order and the potential for international child abduction. Taking these steps will be your safest bet to ensure that your child does not make it outside the U.S. border without your consent when your consent is required.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Contact an Experienced Divorce & Family Law Attorney for Answers to Your Child Custody & International Travel Questions
If you have questions about obtaining a passport for your child, or about international travel under your current child custody and child visitation arrangement, contact the experienced and compassionate attorneys at the Divorce and Family Law Office of Robert E. Hornberger, Esq., P.C. at 631-923-1910 to schedule your free consultation today.
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