What Divorced Parents Need To Know When Planning To Travel Out Of The Country With Their Children
With divorce comes a whole host of issues to be resolved, and when children are involved that means deciding on child custody arrangements. Suddenly, new concerns arise as custody arrangements place restrictions on a parent’s ability to spend time with their children. International travel is one area that is impacted by child custody matters. Ideally, parents can work out agreements on their own regarding travel plans with children. However, parents must be aware of strict requirements when it comes to planning international travel with your children.
First and foremost, a passport is required for any person, including a child, to leave the country. The Two Parent Consent Law requires both parents to consent to the issuance of U.S. passports for children under the age of 16. If the child is 16 or older, he or she can sign all documents independently. However, for those under 16, both parents will typically need to consent. In cases where one parent has sole custody of the child, the consent of the other parent is not needed but the custodial parent will have to submit one of the following documents as evidence: a court order granting sole legal custody, a court order permitting that parent to apply for the child’s passport, a copy of the child’s birth certificate or adoption decree listing you as the only parent, a copy of the judicial declaration of incompetence of the other parent, or a copy of the death certificate of the other parent. For joint-custody arrangements, both parents will need to appear to give consent. Alternatively, if one parent cannot appear, that parent can provide a signed statement of consent.
The best way to handle custodial concerns regarding travel is by incorporating a vacation clause into the custody agreement, which should contain as much detail as possible. The experienced family law attorneys at Fass & Greenberg can help to ensure your interests are communicated clearly. The agreement should include detailed provisions governing the parents’ ability to travel with their children, such as limits on where and when a parent can travel with the children, requirements that the non-traveling parent be notified within a specified time frame, requirements that the traveling parent obtain permission from the non-traveling parent beforehand, a duty to provide the non-traveling parent with the trip itinerary including all lodging and contact information, and how the logistics of obtaining the child’s passport will be handled. If there is no mention of vacation or travel in the custody agreement, either parent would have the ability to take the child out of state within the confines of his or her normal visitation time. However, to avoid conflict, obtaining permission from the other parent is always in everyone’s best interest.
If you find yourself trying to plan a vacation but facing opposition from your child’s other custodial parent, a family law attorney can help you navigate the issue. If vacationing is not addressed in your custody arrangement and permission is not granted by the non-traveling parent, the parent seeking to travel with the child must obtain court permission to legally take the child out of the state. A parent could petition the court for such permission. 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 either authorize a parent to obtain the child’s passport over the other parent’s objection, or restrict the ability for the parent to travel internationally with the child. In Matter of Arroyo v. Agosta, 78 A.D.3d 938 (App. Div. 2nd Dept. 2010), the Court affirmed that a parent cannot unreasonably withhold consent to the other parent’s requests to travel with their child.
Conversely, if you have reason to contest your child traveling with their other parent, there are some protective mechanisms in place. If parents disagree about their child obtaining a passport, the parent opposing the passport can register with the Children’s Passport Issuance Alert Program. This program will notify the parent if anyone attempts to obtain a passport for their child, thus providing the opposing parent the opportunity to prevent the issuance of the passport. If your child already has a passport and you are a custodial parent concerned that the other parent may be a flight risk or try to unlawfully remain with your child in the foreign country they are traveling to, the Hague Convention on the Civil Aspects of International Child Abduction provides some refuge. This is an international treaty that provides a legal basis for securing the speedy return of wrongfully removed or retained children back to the country of their residence where a court can decide custody issues.
Laying out agreed upon terms in your child custody agreement initially is a great way to establish clear boundaries when it comes to travel, and a family law attorney can provide the proper guidance for doing that. If you find yourself in disagreement with your child’s other parent about travel plans, be sure to contact the attorneys at Fass & Greenberg to understand and enforce your rights as a parent.