Traveling Abroad with Children After a Divorce: Tips and Pitfalls

With summer approaching in New York, many parents have begun planning vacations for when their children are off from school. However, when the parents in question are in the middle of or previously were involved in divorce and/or custody litigation, traveling with children can be a complex issue. Specifically, traveling abroad with your child can be a challenge under New York law where the parents don’t agree. Due to fear regarding children being abducted to foreign countries by their parents, there are certain rules and regulations with respect to children traveling outside of the United States.

Similar to adults, a child must have a passport in order to go from the US to another country. However, for a child under the age of sixteen to obtain a passport, they need to 1) appear in person and 2) have the permission of both parents. This permission must involve the production of one of several different documents (such as a birth certificate or adoption order) showing that the adults in question are the parents of the child for whom the passport is being obtained.

When both parents are on good terms and agree that the child can travel, this is a relatively straightforward process. However, during or after a divorce (or custody battle where the parties weren’t married) getting permission from both parents for their child to obtain a passport can become a battlefield, with New York courts being the forum.

However, if one parent is refusing to allow a child to travel, the parent seeking to obtain the passport or leave the country has recourse. They can hire a lawyer or attorney and get an order from the court. Typically, New York courts will grant permission for a parent to obtain a passport for a child (even over the other parent’s objections) if that parent is unreasonably withholding consent. Should this occur, the court will order the other parent to sign a notarized Statement of Consent, which will allow the other parent to go apply on their own. An objecting parent should be aware that for a typical vacation (and no indication that the other parent is a flight risk), the court will typically order cooperation.

There are, however, circumstances where a New York court is less likely to allow the parent seeking to travel to take the child abroad without their ex’s consent. These include situations where the parent seeking to travel is a flight risk. In other words, there are circumstances showing that they may abscond with the child. Situations where the parent is traveling to a country of origin, a country where family is located, or where they may have other resources are viewed with far more scrutiny than short trips with a clearly fixed duration (for example, a cruise), or cases where the party traveling with the child is the primary custodian.

Where the child already has a passport, and there is concern that the parent seeking to travel may abscond with the child (or the objecting parent simply objects to the trip on another basis such as distance or missing too much school), the objection parent can obtain a court order requiring the other parent to surrender the passport in question to be kept either in escrow by one of the parties’ attorneys or to be placed in the objecting parent’s possession. Conversely, where a parent is unreasonably withholding consent to travel, the parent seeking to go abroad can go to a New York court and obtain an order for the objecting parent to turn over the child’s passport if it is in there possession.

Due to all of these complications, there are a few points that will help parents who are in a divorce or custody battle:

  1. Plan ahead. Always start planning vacations far in advance, so there is time to fight it out with your attorneys if need be, and you don’t have to cancel or reschedule a trip.
  2. Talk to your lawyer or attorney about putting a passport waiver or travel agreement clause into a custody or settlement agreement. This way there are guidelines for each party to travel with their children that a New York court can enforce, saving a lot of time and effot.

If you adhere to those steps, you can look forward to a vacation abroad with your children instead of fighting for the ability to take them there.

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