Passports & Foreign Travel

Can a parent simply travel anywhere at will with them during his/her parenting time? No - if a parent wanted the children to visit a war zone for example, the other parent would likely file a motion to block the travel, and a judge would be skeptical indeed of a parent’s wishes for the children to have the cultural experience of a lifetime in Kabul, Afghanistan.

The author has witnessed battles when a parent seeks to stop the children from going on a Caribbean cruise, or visiting all-inclusive resorts in Mexico, with the other parent claiming that they are dangerous places. While such objections do not typically succeed, they cost both parents time and money, and risk delaying travel if one parent withholds consent for a passport.

Travel Advisories

The starting point for whether to object to travel is whether the U.S. State Department has issued a travel advisory for the location in question. Two caveats, however:

• Not all advisories mean anything. Pretty much any foreign travel will involve a Level 1 advisory which simply means: “There is some risk in any international travel. Conditions in other countries may differ from those in the United States and may change at any time.” Likewise a Level 2 advisory, for increased caution, may still mean that the foreign location is safer than many places in the U.S. However, Level 3 and 4 advisories mean something.
• An advisory may be for one part of a country, but not all of it.

Graham.Law’s parenting plans typically include common-sense language that tries to reduce the battles over overseas travel:

“Overseas Trips. The parents have the right to travel abroad with the children during their parenting time, and shall provide the other with at least 30 days written notice of the itinerary. No consent or order is required for foreign travel, except to a location which has a Level 3 (Reconsider Travel) or Level 4 (Do Not Travel) Travel Advisory in effect per the State Department web site (currently https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html). Within 14 days of one parent providing the other with a consent form/letter authorizing travel consistent with this provision, the other parent shall return the executed form to the requesting parent.”

Here is a sample minor child travel consent form. While no particular form or language is required, to prevent problems a consent form should identify the child and details of travel at a bare minimum.

Children Passports

To help prevent international parental kidnapping, federal law requires the consent of both parents for a child under 16 to obtain a passport. There are exceptions, such as proof of the other parent's death, a family law court order granting the applying parent sole custody, or a court order specifically permitting the applying parent to travel overseas with the child.

Unless both parents apply for the child’s passport, the applying parent must submit a DS-3053 Statement of Consent from the other parent. In case of unusual circumstances, such as a court order which references the specific trip, order assigning sole custody to one parent, or if the other parent cannot be located, the parent should complete a DS-5525 Statement of Exigent/Special Family Circumstances For Issuance of a U.S. Passport to Minor Under Age 16.

Note that the issuance of passports takes weeks (although we are fortunate enough to have in Denver a regional passport office which can issue an expedited passport within two weeks. I know it works - a few years ago, much to my wife’s chagrin, I realized just six days before a family trip abroad that my own passport had expired, and by taking a day trip to Denver and paying a bunch, I was able to get a passport in time to travel.

However, if the children do not have passports, and the other parent is not cooperating, you should also consider the time it will take to file a motion, then obtain a court hearing and order for the passport. I typically advise clients that they should file a motion for issuance of a passport about 8 months before the planned trip.

A well-written parenting plan will anticipate the travel issue, and provide a mechanism for a parent to obtain a passport. At Graham.Law, many of our parenting plans incorporate language similar to the below:

“Passport. Either parent may obtain a child passport. Within 14 days of one parent providing a completed DS-3053 Statement of Consent (currently available at https://eforms.state.gov/Forms/ds3053.pdf), the other shall return the executed form to the requesting parent. Regardless of who pays, any passport obtained belongs to the children. The passport shall remain in the possession of the last parent who took a trip, except when needed for a trip by the other parent.”

Delinquent Child Support

Child passports are not the only concern. A parent who owes $2500 or more in child support arrears may have his/her own passport revoked! A parent who is owed support cannot do this on his/her own, but would instead work with Child Support Services. See the Family Support Registry & Enforcement article for more information.

Hague Convention

The United States, and many foreign nations, are signatories to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, shortened by the State Department to the Hague Abduction Convention. (It cannot be shortened to the Hague Convention - so many treaties are signed in the Hague that such a name would not narrow it down much).

The convention provides an expedited way to locate and return children who were abducted in violation of a court order. The State Department has a list of countries who have signed onto the convention.

Can one parent prevent the other from traveling to a country which has not signed the convention? Probably not - absent some other evidence that the traveling parent plans to abduct the children, a family law judge is not likely to block the travel based upon speculation that an abduction may occur.

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