Passport Issues in Divorce and Custody Cases
International travel with children can be a hotly contested issue in divorce or custody cases, and even more so in our extremely transient, diverse, and well-traveled Northern Virginia population. Many times, parties are able to work out mutually agreeable terms regarding international travel, but others aren’t so fortunate. A parent might be concerned about his or her child traveling internationally for any number of reasons, including the safety of the destination country and the concerns of parental kidnapping. This will serve as an introduction to some passport issues and how the state courts can get involved.
Most know that a passport is required for most international travel. But even if international travel is not planned or expected, a passport can also be useful as a form of identification for a child, though a Child ID Card issued by the Virginia Department of Motor Vehicles is generally easier to obtain.
U.S. passports may only be obtained by U.S. citizens and nationals. An applicant who meets the criteria for a passport must be issued one. Thus, as long as you can “check all the boxes” you are generally entitled to a passport. The State Department cannot arbitrarily decline a request for a passport.
Minors must appear in person to apply for a passport. The most common place to apply for a passport is a local U.S. Post Office facility. Once issued, passports issued to a minor are valid for five years.
Applications for a passport for a minor under age 16 generally require the consent of both parents. To minimize hassle, both parents should be physically present with the child at the time of application. However, that is obviously not always possible. Thus, applications will also be processed where the absent parent has signed a Form DS-3053: Statement of Consent in the presence of a notary and includes it with the passport application. Children who are 16 or above only need the consent of one parent to obtain a passport. Regardless of the child’s age, the child must present sufficient documentary evidence proving citizenship, and the child’s parent must present sufficient documentary evidence proving a parent-child relationship. A birth certificate (along with the parent’s valid photo identification) normally satisfies both of these requirements.
Passport issues frequently pop up in divorce or custody cases. Usually, if both parents are alive and have joint legal custody, both parents must consent before a minor can obtain a passport. However, a parent who has sole legal custody and can provide a court order confirming that can obtain a passport over the other parent’s objection.
Where the parties have joint legal custody and one parent does not consent to the issuance of a passport, state courts can resolve those disputes. A state court judge does not have the authority to revoke or invalidate a passport, but he or she can order a parent in possession of a child’s passport to surrender the passport to the court or to the court’s designee. A state court can also order that one parent maintain possession of the child’s passport and other important documents.
Most importantly to a Virginia parent with joint legal custody, a state court judge can also authorize a parent to obtain a passport for a minor over the other’s objection by ordering the objecting party to sign the passport application or otherwise cooperating in the application as necessary. Accordingly, if joint legal custodians cannot agree on whether or not the child should get a passport, either can petition the court (usually through a motion) to require the other parent to cooperate. A judge may deny that request if he or she feels that there is a “flight risk,” which may be the case if one of the parties has limited or short-term ties to the U.S., if a party or the child has dual citizenship, or if there is a concern of travel to a country that is not a signatory to the Hague Convention (considerably simplified, an international treaty designed to expedite the process of returning wrongfully-removed children to their home countries).
Likewise, if the parties cannot agree on whether or not the children should be traveling overseas (which courts generally feel is a joint legal custody decision), a state court judge can authorize or restrict international travel as part of its authority to determine custody and visitation issues. So, if there is even a remote possibility of this issue popping up, a parent or his or her attorney can and should ask the court to impose restrictions on travel such as when, where, and how frequently, and to require the traveling parent to provide a detailed travel itinerary and contact information over the course of the travel. This also means that if you are planning international travel with the child, you should begin making those plans (including obtaining a passport) far in advance to allow time for negotiation through attorneys or litigation through potentially crowded court dockets.
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 fairly effective short-term remedy. A parent can submit the appropriate information about the child to the U.S. State Department’s Children’s Passport Issuance Alert Program (CPIAP). Then, if the other parent (or anyone else) attempts to apply for a passport for that child, the Department will alert the objecting parent, who will then have the opportunity to take the appropriate action.
Virginia courts have a wide range of authority regarding international travel with children, including the authority to decline it altogether or impose considerable restrictions. The same can be said for passports: a judge can order a parent to cooperate in the application, order a parent to surrender a passport, and direct one of the parties to hold the passport. Because of that considerable authority, it becomes extremely important to know the law and the judges that make decisions based on that law. An experienced domestic relations attorney knows both, and can help you develop a strategy to enable international travel with your child. And if you’re on the other side of that situation, an experienced domestic relations attorney can help you develop the best case for prohibiting or at least restricting your child’s international travel.