Child Custody and International Travel

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

Legal Custody

A common issue that arises in child custody cases relates to international travel. Issues such as international travel and obtaining a passport for a child generally fall under “legal custody.” If parents share legal custody, which many parents do, then parents must agree about obtaining passports and international travel. If no agreement can be reached, then the remedy is to seek relief through the Court. To help limit disagreements, it is not uncommon for custody orders to include language about applying for passports, and providing sufficient notice for travel as well as itineraries. Even with parental consent, it is not uncommon for countries to require specific documents regarding a minor child entering and departing the country. As a practice point, we will advise clients to carry notarized consent forms for the duration of their travel.

Children’s Passport Issuance Alert Program

Aside from basic travel disputes, in some cases, one parent may be concerned about the other parent removing a child from the United States and/or applying for a passport without their knowledge. The State Department has a Children’s Passport Issuance Alert Program which allows the State Department to tell a parent if there has been a passport application prior to issuance. It is important to note that once a passport is issued, the State Department cannot track its use.

Hague Abduction Convention

It is also important to be aware of the enforceability of your custody order in a foreign country and, in particular, whether that country has joined the Hague Abduction Convention. The Hague Abduction Convention is a binding agreement that many countries, including the United States, have joined. The purpose of the Convention is for countries to work together to resolve instances of child abduction and encourage the return of the Child to the home country. 

However, not all countries have joined the Hague Abduction Convention. A common misconception is that this fact alone will prevent a parent from traveling to that country. If parties do not agree on international travel, no matter the reason, it is not uncommon for Courts to generally conduct an assessment exploring the purpose of the travel as well as the duration, and the Court will also want to understand why a parent is opposing travel to a particular country. In recent years, travel advisories have played a role in whether a parent will agree to international travel. COVID-19 presented great barriers to travel, and conflicts within countries are also a reason a travel advisory may be heightened.

While international travel with your child can seem as simple as saying “Let’s go to Mexico!” often times there are other issues that can arise that may require assistance from a family law attorney or the Court in the county where you reside. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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