October 3, 2014 By Paul Wallin

International travel has become more common today than ever before. This has many benefits of course, such as the ease of vacationing abroad, overseas business trips, or traveling internationally to visit friends and family. This may all seem exciting to many; however, if you are a divorced parent whose child is traveling abroad, this could be your worst nightmare.

You may be worried that your former spouse will ignore his or her legal obligations and remain on foreign soil with your child. If this were to happen, it would be almost impossible for the court to enforce the terms of the child custody order outside of U.S. jurisdiction.

If the thought of your child travelling overseas with your former spouse is the cause of your concern, it is important that you take some precautions. However, it is important to first understand the laws regarding children traveling abroad.

Minors Under the Age of 16 Must Have Parental Consent to Obtain a Passport

Obtaining a passport

Minors under the age of 16 cannot apply for a passport by themselves. When obtaining a passport for a minor under the age of 16, both parents (or guardians) must appear in person with the minor to provide consent for the minor to be issued a passport. If one parent is unable to appear in person, then that parent must fill out a signed and notarized statement of consent form.

The U.S. Department of State indicates that when one parent has sole legal custody of a child, that parent may apply for a passport for the minor if the parent “provides documentary evidence of having sole legal custody of the child and/or a court order specifically permitting that parent’s travel with the child.” If the minor only has one parent/guardian, that parent will be required to submit evidence of sole authority over to apply for the minor’s passport. Any one of the following documents will satisfy this requirement:

    • The child’s birth certificate, Consular Report of Birth Abroad, or adoption decree, listing only the applying parent for the passport
    • A court order granting sole legal custody to the applying parent (unless the child’s travel is restricted by the order)
    • A court order permitting the applying parent’s travel with the child
    • Judicial declaration of incompetence of the non-applying parent
    • Death certificate of the non-applying parent1

How Divorce May Impact Passport Issuance for Minors Under 16

When the parents of the minor child are divorced, the traveling parent may obtain consent for a passport application for the minor child by using the documentary evidence outlined above.

Additionally, in cases involving pressing or emergency circumstances in which written consent of the other parent or guardian cannot be obtained in a timely manner, the parent requesting the passport may still apply and be granted a passport. To do so, the applying parent must explain in a detailed statement why the other parent or guardian is unavailable and the recent efforts that were made to obtain that parent’s consent. The applying parent may also be required to provide evidence of the emergency circumstance.

What Precautions Should You Take?

If you and the other parent have a friendly, trusting relationship, this provision may not be an issue. However, if you and your former spouse are not on the best of terms, this may be cause for concern. You may be concerned that your former spouse will keep your children overseas, especially if he or she has previously made threats to take your children from you. If this is the case, you should take certain precautions before the other parent travels abroad with your children.

Alert the State Department

If you are concerned about your ex-spouse going abroad with your children, you should alert the state department using the Children’s Passport Issuance Alert Program. This program assures that if a passport application is submitted for your child after he or she is enrolled in CPIAP2, the Department will notify you to verify your consent for the passport. You should seek the guidance of an experienced attorney to assist you through this complicated process.

Notify Your Family Law Court

Notify your family law court

If you have concerns about your spouse travelling internationally with your child, a family law attorney can notify the court on your behalf. Because a U.S. family law court does not have jurisdiction in foreign countries, the court’s only option to protect your parental rights is to issue a Ne Exeat security bond.

A Ne Exeat security bond is a court order that seeks to guarantee that the other parent will uphold to the terms of the divorce settlement and child custody agreement. In the event that the other parent does not return and does not uphold to the terms of his or her agreement, the Ne Exeat Bond will require the other parent to pay the bond. This covers the cost of international legal action that you would incur in trying to get your children back.

Consult a Family Law Attorney

In order to prepare yourself for your child’s international travel, you should speak with an experienced family law attorney. An attorney can help you protect yourself and your child as best as possible by requesting to have your child custody order modified. The court may then modify your order to have provisions placed that clearly limit the other parent’s ability to travel with your child. By doing so, the other parent is legally bound to abide by the provisions specified in the custody order. If the court order is violated, you can notify your local police agency to file criminal charges against the other parent. This will ensure that you are taking the correct steps to prepare for your child’s travel overseas.

Call Wallin & Klarich Today

Protect your parental rights when your child is traveling abroad
Partners of Wallin and Klarich

At Wallin & Klarich, we understand that you may have reservations about allowing your child to travel internationally with your former spouse. We know how difficult it can be to figure out whether your spouse has the authority to apply for a passport for your child. For these reasons, is crucial that you seek the assistance of one of our experienced family law attorneys immediately. Our knowledgeable team of attorneys at Wallin & Klarich has over 30 years of experience successfully helping our clients with child custody issues. Let us help you today.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our knowledgeable attorneys are available to help you no matter where you are located.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

1. http://travel.state.gov/content/passports/english/passports/under-16.html#consent

2. http://travel.state.gov/content/childabduction/english/preventing/passport-issuance-alert-program.html

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