In a previous post, we discussed the importance of using a parenting plan to schedule vacation time with children. We discussed how it is important to have open and honest communication so both parents can plan vacations without creating any scheduling conflicts, or any other types of conflict.
If you are planning a vacation out of state, it is customary to inform your ex about your plans, so they know where their children are at all times. There are times when a spouse may be concerned about allowing an ex to take the children out of state. These issues can be resolved through discussion, though at times, the concerns may be brought to court for a judge to rule on wehther the plans are in the best interests of the child.
If travel and vacation plans include international travel, some additional details and concerns may come up.
If the children are under the age of 16 and do not have travel documents, both parents need to be involved in obtaining a passport book or card. The process for a minor child to receive a passport is much more involved and requires both parents to participate.
- Form DS-11 needs to be filled out
- You will need to provide proof of citizenship and bring photocopies to accompany the application.
- Minors must provide proof of parental relationships. Some documents, such as a United States issued birth certificate, may demonstrate citizenship and parental relationships. These documents cannot be photocopies. They need to be originals or certified copies.
- Parents or guardians must provide some form of government-issued identification, such as a passport or driver's license.
- Both parents must provide parental consent.
What if both parents are unable to appear for the application process? Several options are available depending on the circumstances.
If you have sole legal authority over the child:
If you have sole legal authority, you must submit evidence of such, along with the DS-11 application. Proof can be in the form of a court order granting you sole legal custody. There may also be a court order specifically permitting you to apply for your child's passport. You may also provide a birth certificate or adoption decree showing that you are the sole legal parent. If there is a judicial declaration of incompetence, you may also provide this as evidence.
If one parent is unable to appear:
If both parents share legal custody, but one is unable to appear for any reason, a statement of consent must be provided. Form DS-3053 must be filled out and signed in the presence of a notary public. The form must be submitted along with a front-and-back copy of the identification they provided to the notary public. If the parent is unable to appear because they are traveling or living in certain countries, Form DS-3053 must be notarized at a United States Embassy or Consulate.
*We provide a list of these countries at the end of this blog post.
If one parent cannot be located:
If a parent with legal custody cannot be located, you will need to complete Form DS-5525, which is a Statement of Exigent/Special Family Circumstance. You will be asked for each of the instances where you attempted to contact your ex-spouse and how you attempted to reach them. You will also be asked if they are unavailable due to incarceration or if there is an order of protection. In these cases, you must provide evidence.
If your ex-spouse is in the military and is currently deployed, you will still have to make the attempt to reach them for consent and for the DS-3053 to be filled out. If they are unavailable due to special assignment or are away from their duty station for more than 30 days, this information should be included on the DS-5525, or you should receive a signed statement from the parent’s commanding officer that they are unavailable and cannot be reached.
Children who are 16 and 17 years old may apply for a passport on their own, with the only requirement being that they show that one parent is aware of their passport application.
What if you or your ex does not approve international travel?
If you are planning international travel and your ex does not approve of the vacation or does not give consent for the passport or, likewise, if you do not approve of your ex taking your children abroad, it becomes a legal matter.
There are times when the resolution of these issues may require discussion and agreements with the assistance of your family law attorney. If the matter cannot be resolved through discussion and negotiation, it will become a matter for the courts. If there is concern of a flight risk, meaning the non-approving parent thinks the other parent is looking to leave the country with the children with no intention of returning, the judge will have to make a determination after reviewing all of the evidence.
To determine flight risk, a judge will review the history of the case and will also take into account if the parent traveling has citizenship or dual-citizenship in the country to which they are traveling. The judge will also consider whether or not the country participates in the Hague Convention, an international agreement that requires countries to follow common rules regarding returning children to their home country. As with all decisions involving children, the judge will use the benchmark of what is in the best interest of the children. Details of the parent's arguments for and against will be taken into account, but the court's priority is the interests of the children, and they will generally rule with that in mind.
As a parent, if you have concerns regarding your children being moved out of the country, you may also enroll in the Children’s Passport Issuance Alert program, which will alert you if there is a pending passport application or issuance without your consent.
After a divorce, while parents share legal custody of minor children, there are going to be times when you do not agree. Most of the time this can be resolved through discussion, especially if you have a respectful and communicative relationship with your ex. However, this is not always the case. If you require a family law attorney to assist you with any concerns, including international travel, contact our office at (516) 252-0223.
*Countries where Form DS-3053 must be completed at a U.S. Embassy or Consulate (last updated November 2019): Algeria, Angola, Bangladesh, Bulgaria, Cambodia, Cameroon, Dominican Republic, Egypt, Equatorial Guinea, Ethiopia, Gabon, Guatemala, Guinea, Haiti, Honduras, Iran, Iraq, Jamaica, Kenya, Laos, Lebanon, Libya, Mali, Mauritania, Mauritius, Moldova, Nicaragua, Nigeria, North Korea, Pakistan, Panama, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Syria, Trinidad & Tobago, Uganda, Ukraine, United Arab Emirates, Venezuela, Vietnam, and Yemen.