Passports and child custody

Posted Wednesday, January 31st, 2018 by Gregory Forman
Filed under Child Custody, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I know family court judges who don’t have passports and am frankly shocked–until you experience foreign cultures it’s hard to truly understand that radically different approaches to parenting other than the current American middle-class norm might be effective (and might not be potentially abusive). The world is diverse and increasingly interconnected. Children who don’t get to experience foreign cultures are poorer off for it. Pretty much any child whose parents have sufficient resources for that child to be able to travel should have a passport. However, unless passports and foreign travel are addressed as part of initial custody agreements and court order, it can be much harder to address these issues later.

Federal regulations give the family court authority to order passports for children over a custodial parent’s objection. CFR Title 22, Chapter I, Subchapter F, §51.28(3)(E) regarding Minors and Passports reads:

3) Execution of passport application by one parent or legal guardian. A passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if such person provides: …

E) An order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian.

The regulation notes that a parent having “sole legal custody” does not need explicit permission from the other parent to obtain a passport, so long as the order granting such custody contains “no travel restrictions inconsistent with issuance of the passport.” However, when the parties have joint custody, or when the opposing party has sole custody, the other party can use passports, and the right to foreign travel, as a bargaining chip. Seeking relief from the family court may not always be effective and will always involve delay.

I have begun counseling my custody clients who are interested in foreign travel to make the right to obtain a passport and to foreign travel part of any initial custody agreement or litigation. If the other side won’t agree to this, I counsel clients to fight for this right–under the assumption that once a final order is in place, the other party will have all the leverage regarding this issue and my client might be facing extensive subsequent litigation (and attendant delays) to obtain that right.

I simply do not understand most parents who categorically oppose the other party traveling out of the United States with their children. I am willing to assist parents who want to oppose foreign travel for an opposing party who wants to take the child to a country that has not ratified the Hague Convention on the Civil Aspects of International Child Abduction, or when that parent has made credible threats to permanently remove the child from the United States. Otherwise, I would no more fight an opposing party’s desire to take the child on foreign travel than I would fight that party’s desire to immunize a [non-immunocompromised] child. A passport shouldn’t be subject to bargaining. Absent the two circumstances above, I counsel my clients to agree to passports without getting anything in return and counsel them to not make any concessions in order to obtain passports.

Folks agreeing to joint legal custody should address the passport/foreign travel issue within that agreement. Non custodial parents who wish to travel outside the United States with their children should ensure their custody agreements/court orders address passports and foreign travel. Failing to address it in the initial agreement or order can lead to substantial and unnecessary problems later on, when an intransigent parent uses this issue as leverage to obtain concessions that he or she would not otherwise be able to able to obtain.

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