Pasternak & Fidis Reporter

December 17, 2019

What Divorcing Parents Should Know About International Travel with Children

Many parents like to vacation with their children, to the beach, to a national park, to visit a big city. Some families travel abroad. Parents who are separated, or planning to separate, should include rules about traveling with minor children in their settlement negotiations. Parents can avoid disputes by agreeing to travel protocols in their parenting plan.

What is required to apply for a U.S. passport for a child under age 16?

A child under the age of 16 must apply for a passport in person. The child must be accompanied by both parents, as required by the federal Two-
Parent Consent Law, and provide proof of the child’s citizenship (U.S. birth certificate; a valid, undamaged U.S. passport (may be expired); a foreign
birth certificate).

The following are exceptions to the two-parent consent requirements, allowing the applying parent or legal guardian to apply alone with the child:

  • If one parent cannot appear, the applying parent should bring a signed and notarized Form DS- 3053 “Statement of Consent” of the other parent and a copy of the other parent’s ID presented to the notary at the time of signing. The notarized Statement of Consent must be less than three months old.
  • If one parent cannot be located, the applying parent should bring a signed Form DS- 5525 “Statement of Exigent/Special Family Circumstances” and additional documentation as requested by the Department of State.
  • The applying parent may provide a court order granting him or her sole legal custody of the child, or specifically permitting the parent to apply for the child’s passport.
  • A certified copy of the child’s birth certificate or adoption decree listing the applying parent as the only parent, or the other parent’s death certificate.

What is required to apply for a U.S. Passport for a child aged 16 or 17?

A child of 16 or 17 may sign a passport application on their own behalf but must show parental awareness:

  • At least one parent or legal guardian must appear with the applying child; or,
  • The child must present a signed, notarized statement from one parent or legal guardian consenting to the issuance of a passport with a copy of that parent or legal guardian’s ID.
  • The passport may be denied if a non-applying parent has filed a written objection.

What are best practices for parents when a child travels without both parents?

  • The Department of State does not have border exit controls or two-parent consent requirements.
  • This means a child may leave the United States with only a valid passport. U.S. Customs and Border Protection (CBP) strongly advises that a parent traveling solo with a child get a notarized consent from the non-traveling parent. If a child is to travel with grandparents or other relatives, or with an organized school or sports group, CBP recommends that both parents sign a notarized consent to the trip. There are other requirements for organized groups when a parent or legal guardian is not present on a trip.
  • If the traveling parent has sole custody of a child, he/she should also carry documentation, such as a court order, birth certificate with the traveling parent’s name, and any other documents he or she has proving parental legal authority.
  • Although the United States does not require an adult traveling with a minor child to carry a consent letter, other countries may have such a requirement. Parents should check the entry and exit requirements of the country they plan to visit.

The Children’s Passport Issuance Alert Program (CPIAP).

A parent who objects to issuance of a U.S. passport to his or her minor child can place an alert with the Department of State’s CPIAP. In that event, the Department of State will notify the parent when a passport application has been submitted; the objecting parent has 30 days to file an objection. CPIAP does not track use of the passport nor prevent a parent with dual nationality from obtaining a foreign passport.

What can a parent do to prevent overseas travel if a child has dual citizenship?

A child who is a U.S. citizen may also have or acquire citizenship of another country by birth outside of the U.S., a parent’s citizenship, or naturalization. A foreign national parent may obtain a foreign passport for a child and, depending on the country, the child may travel on a parent’s foreign passport.

According to the Department of State, here are some steps parents can take to find out about another country’s requirements for issuance of a foreign passport:

  • Contact the foreign embassy or consulate in the U.S. to confirm a child is documented as a citizen of that country and confirm its requirements.
  • Some countries do not require consent of both parents to obtain a passport. Contact the foreign embassy and consulate to obtain a country’s rules in obtaining a passport for a child and check if there is a passport notification program.
  • Contact the appropriate foreign embassy or consulate to find out if they will honor a U.S. court order preventing issuance of a passport. If not, ask if they will notify the other parent of a passport application.

How to minimize parental disputes regarding travel with minor children after divorce?

To head off future disputes, divorcing parents should attempt to resolve their child-related issues in a parenting plan or custody agreement. A parenting plan should provide protocols to deal with travel in the United States and abroad, which may include:

  • advance notice by the traveling parent to the other parent, including dates of travel, mode of transportation, airline and flight number, and other information, as applicable, destination and a contact phone number in case the cell phone of the traveling parent does not work abroad;
  • cooperation of both parents to obtain or renew a passport for the child;
  • determine the parent who will retain possession of the child’s passport;
  • obligation of a parent who has possession of the passport to turn it over to the traveling parent upon request;
  • proscription on travel to a country or region that has a U.S. Department of State Travel Advisory;
  • obligation of the non-traveling parent to sign a consent form allowing the traveling parent to travel abroad with the child that complies with federal law and procedures and those of the country where the parent intends to travel;
  • determine how the parents will pay for the passport application process.

The Last Resort.

A parent may need a court to intervene if there is no prior court order or written parental contract that addresses international travel. A parent may want a court to establish specific travel protocols, such as authority to obtain a passport for a child, or to impose travel restrictions on a parent who is threatening to remove a child outside of the United States.

Depending on the circumstances, a court order may include:

  • an award of sole legal custody of a child;
  • protocols to obtain or renew a passport;
  • requirement that the non-traveling parent sign a notarized statement and other forms permitting the child to travel;
  • prohibition on a parent traveling abroad with the child without prior court approval;
  • supervised visitation with the child;
  • that a foreign embassy or consulate not issue any new passports to a foreign national parent and the child, if applicable;
  • requirement that the passports of a foreign national parent and the child be held by a third party or in the court registry;
  • requirement that a foreign national parent notify his/her country’s embassy consulate of the order prohibiting a new or replacement passport for the child.

How to resolve parental travel disputes?

If a parent refuses to follow the terms of a parenting plan or custody agreement, such as provisions related to traveling with children, the other parent can sue to enforce the contract. Similarly, if a parent fails to comply with an order, then the noncompliant parent can be found in contempt of court and subject to civil and criminal penalties. Under some circumstances a parent may be forced to seek an emergency order if his or her travel is imminent. It is always better if parents can cooperate.