As foreign travel has gotten easier and my client base has gotten wealthier, more of my clients need their child custody agreements to address passports for their children. Thus, an increasing percentage of the custody agreements I draft, or custody cases I try, address the issue of children’s passports. Experience teaches that such agreements need to address three concerns: 1) how the passport will be obtained or renewed; 2) how the passports will be used; 3) how the passports will be held.
For ease, this blog will assume that the “custodial parent” is the one applying for and typically holding the passport. However, there are certainly circumstances in which the other parent should be the one doing these things—typically when it is that parent who is either most interested in or most frequently engages in foreign travel. In such cases, simply switch the parents in the agreement language. This blog also references the current State Department forms and threat level guidance. If those change, the language in the agreement needs to be updated. My agreements often including the qualifier “or the then equivalent” to address these future changes.
The issue of how a passport is obtained or renewed needs to be addressed because the State Department will not issue passports to children absent both parents’ consent.[i] The language I current use to address this is:
The non-custodial parent shall provide the custodial parent executed forms necessary for the custodial parent to obtain or renew passports for the minor children, including but not limited to Form DS-11/DS-3503 (or its then equivalent) and a copy of his driver’s license. Such information shall be provided within seven days of the custodial parent’s written request for same.
This language is intended to require the non-custodial parent to execute the forms necessary to obtain a passport for the child. No family court order will override State Department procedure so, if the non-custodial parent refuses to comply or it is anticipated that the non-custodial parent might not comply, the remedy is the procedure set forth in CFR Title 22, Chapter I, Subchapter F, §51.28(3)(E). That regulation allows “a court of competent jurisdiction [to issue an order] specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian.” If one anticipate such intransigence from the non-custodial parent, the agreement or court order should instead read:
Pursuant to CFR Title 22, Chapter I, Subchapter F, §51.28(3)(E), or its then equivalent, the custodial parent is authorized to apply for a passport for the minor child without obtaining consent from the non-custodial parent.
The next issue such agreements need to address is how passports will be used. These are provisions my clients typically desire.
Prior to any international travel that may require the use of the children’s passports:
This language simply prefaces the section regarding use of the passports.
The children shall have all vaccinations and shots for the destination country or location as recommended or required by the HHS.gov website regarding vaccines for travelers.
There are countries prone to diseases rarely seen in the United States. Parents typically want to ensure that their children are vaccinated against those diseases prior to traveling to such countries.
Absent written consent of the parties, the children shall not travel to areas that are threat level three or above or its then equivalent on the website for the United States Department of State.
Currently, the United States Department of State rates countries on a threat level from one to four, with one being the lowest and four being the highest. Numerous countries that Americans frequently travel to are threat level two over concerns of terrorism and/or civil unrest: France, Germany, Great Britain, and Spain being just some examples. An agreement that restricts travel to threat level one countries is likely too restrictive.[ii]
However, areas that are threat levels three or four are countries with high levels of civil unrest. Threat level four countries either tend to be in an active state of war or places where Americans get kidnapped or arrested by the government under false pretenses or where the United States has no diplomatic relations. If parents have connections to a country that is threat level three and both parents are comfortable with travel to that country, a explicit carve-out for that specific country should be made.
Note also, that the sample language uses “area,” not country. The reason for this is that the State Department’s travel advisories are increasingly dividing areas of countries into different threat levels. Currently, this is the case for Mexico and Israel. Mexico can range from threat levels one to four; Israel used to range from two to four but, due to the fighting with Hamas and Hezbollah, now ranges from three to four. Parent may be comfortable with travel to some areas within those countries but not all areas.
Without prior written approval from the other party, neither party shall travel with the children to a country that is not a signatory to the Hague Child Abduction Convention. For the purposes of enforcement of this provision, both parties have joint custody of the children at issue.
The Hague Child Abduction Convention is a treaty that requires foreign courts of signatory countries to honor properly issued custody orders of other signatory countries. The United States is a signatory country. A country that is not a signatory of this convention may not honor an American custody order and may not require the return of children improperly held in that country. There are additional, and problematic, limitations on use of this convention.
First, the convention cannot be used to order the return of a child to a non-custodial parent. The convention explicitly will not order the return of a child to a country where a parent is merely being denied visitation. The “joint custody” language in this section is intended to increase the likelihood a foreign court will order the child’s return; it does not guarantee it.
Further, the convention does not apply to children once they reach the age of sixteen. If there is a concern that a parent might permanently keep a sixteen- or seventeen-year-old child in a foreign country, then the other parent should not agree to that parent having access to a passport for the child.
The parties shall provide the other written notice of any travel requiring a passport including dates of departure and return, destinations, and contact information for lodging, upon booking or within thirty days of departure (whichever occurs last).
Most parents want to know where their children are when their children travel to foreign countries. How much notice to require and how detailed the itinerary should be depends upon the parents’ comfort and mutual trust levels. A provision that allows the traveling parent some flexibility but provides the non-traveling parent some awareness of the children’s whereabouts is the goal.
In the event of an illness or injury (defined as an injury or illness requiring treatment from a medical professional) during travel the party travelling with the children shall immediately inform the other parent.
This provision is simple courtesy. The further children are from their parents, the more parents tend to worry if their children get sick or injured.
Finally, it may make sense to revise the normal electronic visitation provisions in the custody order to account for foreign travel. Some foreign travel may be to places without good (or any) cellular or Wi-fi service. Other times parents may desire more (or less) electronic contact when foreign travel takes place. Some parents want less contact during foreign travel to enable the children to enjoy the travel experience without feeling tethered to home. Other parents desire more contact in order to feel like they are sharing in the children’s experience. Language addressing the parent’s desire can be useful. This is language from a recent agreement with some updating:
Electronic contact during travel shall be governed by the current order. If a parent is traveling with the children to an area that lacks cellular service and/or Wi-fi, they shall have the children contact the other parent immediately prior to entering and immediately upon exiting such area.
The final sections of a passport agreement address who will hold the passport and how the passports can be used:
The custodial parent shall be entitled to physical possession of the children’s passports. The non-custodial parent may obtain them from the custodial parent seven days before any travel requiring passports and return them three days after the children’s return.
There needs to be a provision in the agreement regarding exchange of the passport. The “seven day” provision is likely insufficient to obtain relief from the court if the custodial parent denies the passport. I would prefer a thirty-day provision. However, most custodial parents are not comfortable with that.
Upon written request, the non-traveling parent shall provide the traveling parent an affidavit explicitly authorizing travel to the countries on the traveling parent’s itinerary. Such affidavit shall be prepared by the traveling parent and shall be executed within three days of request.
Some airlines and foreign countries want written documentation from the other parent before allowing foreign travel. This provision is intended to obtain compliance from the other parent when such documentation is needed.
My passport agreement language is ever evolving and the suggestions above will likely be refined over time. However, these are the issues I see that need addressing in agreements to enable parents to travel to foreign countries with their children while reducing the risks of children not being returned or traveling the overly dangerous places.
[i] In theory, parents with “sole custody” should be able to obtain passports without the other parent’s consent. In practice, the State Department sometimes still seeks the other parent’s consent before issuing a passport.
[ii] It’s a sad commentary on the state of our country that if the State Department had to list a threat level for the United States, we would undoubtedly be threat level two.
