Is My Ex-Spouse Allowed to Take Our Child Out of the Country?
Summer is the typical time that families plan more extended vacations, encouraged by warm weather and unencumbered by school schedules. For divorced families involving children, this is the time to amend or update your summer parenting custody calendar. Proposed international travel for co-parents can bring up serious questions about what is permitted, especially when one parent wants to take their child on an international trip. In an increasingly mobile world where an ex-spouse may have family in another country or simply want to share the experience of seeing new places with their children, compromising on reasonable expectations for overseas travel can quickly become a thorny issue. Understanding each parent’s rights and responsibilities around international travel with a child and the legal restrictions involved can help ease fears and clarify any concerns.
Whether you’re hesitant to let your child go out of the country with your ex or you’re hoping to take them on an international adventure yourself, it’s essential to comply not only with the terms of your custody agreement but also with the regulations surrounding international travel with a child. Consulting a knowledgeable family law attorney will familiarize you with your rights and available legal protections and ensure that all the proper steps are taken for agreed-upon travel.
At Hart Ginney LLP, we are experienced at working out child custody agreements in complex, high-stress situations, including disagreements over international travel—we’ll do everything we can to help you ensure that your child’s well-being always comes first.
Has a conflict arose with your ex over proposed international travel with your children?
The Role of Your Custody Agreement
Before either parent makes travel plans, the first step is to check your existing custody order. International travel does not represent any automatic exemption from the usual division of parenting time outlined in your custody agreement, and there may already be provisions in place that govern terms around travel. For instance, each parent may be required to give the other a certain amount of notice before any type of travel with the children and, provide an itinerary, and allow reasonable contact with the children while they’re away. Any such requirements should be strictly adhered to. If the proposed trip would extend one parent’s allotted time, that parent would need to obtain written permission from the other co-parent or, if needed, seek a court order to allow the alternation to the arrangement during the time of travel. Otherwise, the parent can be held in contempt of court for violating their child custody agreement without proper authorization.
Shared Custody Means You Need Consent
When co-parents split custody of their shared children, they should already understand that neither one can unilaterally change their child’s living situation or location without approval. For example, move-away laws mean that one parent can’t elect to relocate out of the state with their children unless they can somehow obtain a court order permitting it. Similarly, the law requires that if one parent wants to take the children on an international trip, they will need to gain the consent of the co-parent. Applicable regulations are designed to prevent children from being abducted (whether by a parent or someone else close to the family), and violating these regulations can lead to serious legal consequences.
All U.S. citizens, regardless of age, must have a passport to travel abroad. To obtain a passport for a child under age 16, both parents must approve of a passport being issued and go in person with the child to apply. If both parents can’t be present, the absent parent must supply a notarized statement of consent (Form DS-3053) and a photocopy of the photo ID provided to the notary public. While a 16 or 17-year-old can apply for a passport with the permission of only one parent, it is possible to be notified of a pending passport application—giving the nonconsenting parent time to object—by enrolling the child in the Children’s Passport Issuance Alert Program (CPIAP).
Further, nobody should take the fact that the U.S. doesn’t check travel documentation for outbound travelers as carte blanche to take their child abroad once a passport is issued. The parent traveling abroad with the child should also obtain written permission from the other parent for the trip and carry it with them as they travel. Otherwise, their actions can be considered abduction, with potentially severe legal ramifications.
Balancing Concern with Your Child’s Best Interest
While the thought of having your child travel to another country with your ex may spark some anxiety, it’s important to examine the thought in light of what would be best for your child. Each parent would want the freedom to take their child to see distant family or to visit new and interesting destinations, and neither parent should unreasonably deny the other the ability to travel with their child so long as there aren’t any legitimate conflicts of interest.
On the other hand, where there are valid concerns for the child’s well-being or safety, no parent should ignore their gut. A trip spanning multiple weeks may not be appropriate for a very young child who is unaccustomed to being away from either parent for more than a couple of days or if the travel location is under a high-level Department of State travel advisory. More alarmingly, an ex who has previously violated the existing custody order suddenly proposing a trip to a country outside the Hague Abduction Convention—an international treaty that provides a shared legal framework for partner countries to resolve international abduction cases—may be a red flag that they are contemplating something more than just a trip abroad. The experienced family law attorneys at Hart Ginney can advise you when disagreements arise and to find a compromise where possible or when to put additional legal safeguards in place, such as court orders forbidding your ex from taking your children out of the country if it comes to that.
Looking Out for Your Child in the Bay Area
At Hart Ginney LLP, our goal in child custody issues is to keep your child’s safety and well-being front and center. If a conflict arises with your ex over proposed international travel with your children, we can help you understand the legal requirements that apply in your case. Our expert attorneys will vigorously work to uphold your rights and reach the best resolution for your child. To schedule your consultation, give us a call at (510) 628-0250 or fill out the form below.
