There was a time before 2010 when you could go to Mexico for a few days and all that was required to return was a valid U.S. ID or a birth certificate. That changed in 2010 when the immigration regulations changed and a valid passport was required for all citizens, including children. There are certain exceptions which are not relevant to this blog, but that can be reviewed at U.S. Department of State.
Living in San Diego, travel to Mexico is a regular activity for many families. Whether it is to visit family still living in Mexico, for medical care, or just for pleasure travel, the draw of the beautiful beaches and fresh seafood is very strong.
With that in mind this blog is intended to provide some information for family law litigants with children who have passports or who may need them in the future.
Obtaining a Passport
The US State Department governs the issuance of passports and may refuse to issue a passport if it has on file a court order granting sole custody to the objecting parent, establishing joint legal custody, prohibiting travel without the permission of both parents or order of the court, or requiring the permission of both parents or the court for important decisions, unless permission is granted in writing. (See 22 CFR §51.27)
If you have joint legal custody of your child, then you will need the permission (and often assistance) of the other parent in order to obtain a passport. In some cases, another parent may unreasonably withhold permission to obtain a passport for a child. In that case, you will need to seek the assistance of the court to obtain an order allowing you to get a passport. The State Department generally will issue a passport if a valid court order is made directing them to do so.
If you believe there will be a conflict over issuing passports, then it is important to take action well in advance of any scheduled out of country travel plans. The process can take several weeks or months to finalize so it is important that it is addressed early.
If your children already have passports and there is concern that the other parent will take the children out of the county without permission, you can seek the assistance of the court to address this issue. You will need to provide some proof that there is a “real and present” risk that the other party will defy a court order related to out-of-country travel. The Court will assume that the parents will abide by Court orders, so without proof it is difficult to prove your case. You will need more than your belief that the other party will defy the order. For example, if the parent has defied an order in the past or has made threats about taking your child out of the country, that is the type of proof needed to support an order for passport restrictions.
If you are able to convince the court that there is a “real and present” risk, the court can do a number of things to ensure the orders is complied with. The easiest option is to have the non-offending parent be the custodian of the passport. That way if the other parent wants to travel out of the United States with the children, they will need the permission (and the passports) in order to travel. In more extreme cases, or in cases where both parents allege the other parent will not abide by the court order, the court can take possession of the passports for safe keeping and require a court appearance in order to obtain them for travel. This type of order is only used as a last resort and should not be the first step in any case.
Addressing passport issues for children is a common issue in Family Courts in San Diego. These issues are usually resolved without much conflict. However in some cases, a party will need to ask the Court for assistance in resolving the passport issues. In these cases it is important to begin the process well in advance of any travel plans and to speak with a qualified Family law Attorney.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding your children and their passports. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.