CAN I TRAVEL OUTSIDE OF THE UNITED STATES WITH MY CHILD?

The ability to travel outside of the United States with your child is dictated by a number of factors.  First and foremost, you should determine if there is a court order that covers the topic.  In many instances Divorce Decrees, Paternity Decrees or subsequent orders of the Court address the parent’s ability to travel outside of the country and sometimes out of the state.  In this article, we will discuss several scenarios and options for the Parent who wishes to travel outside of the country with the parties’ child.  If you have a court order, or you are not sure of your legal situation, you should consult with a qualified family law attorney to review your circumstances and obtain legal advice.

Regardless, the key to traveling outside of the United States is to start early and be patient.  If you do not have a passport or your child does not have a passport, then the process of obtaining a passport will most likely try your patience.

Aside from the technical aspects of application, Indiana Code further requires:

(a) If either party to the custody order applies for a passport for the child, the party who applies for the child’s passport shall do the following not less than ten (10) days before applying for the child’s passport:

(1) File a notice of the passport application with the clerk of the court that issued the custody order.

(2) Send a copy of the notice to the other party.

(b) The parties may jointly agree in writing to waive the requirements of subsection (a).

Ind. Code Ann. § 31-17-2-24 (West)

First, determine whether you need a passport:

  1. According to the U.S. Passport Service any U.S. citizen who plans to exit and/or return to the United States must have a valid passport. This includes infants and children.
  2. Exceptions to the general rule:
    1. Minors age 16 or younger can present evidence of U.S. citizenship such as a birth certificate when returning from Canada or Mexico by land.
    2. A passport is not required for reentry when traveling on a closed-loop cruise (defined as boarding a cruise ship at a U.S. port, travel only within the Western Hemisphere, and return to the same U.S. port on the same ship, you only need to present government-issued photo identification and proof of citizenship.)

After determining that you need a passport for your child, then there are several steps that you need to do:

  1. Complete form DS-11.
  2. Gather the supporting documentation including: (Note: most of the documentation required for proof of citizenship and a parent’s relationship must be certified)
  3. Proof of US citizenship for both parent and child;
  4. Proof of a parent’s relationship to the child;
  5. Passport photo taken within the last 6 months;
  6. The child and BOTH parents must apply in person, absent special circumstances, as noted below. There is NO renewal or issuance of passports by mail for minors.  The U.S. Passport service guide has a list of all places that accept passport applications, many of which are in local post offices.
  7. Then…. Wait. Normal processing can take 6-8 weeks for a passport to arrive.

What do I do if I have special circumstances?

Below, we will look at a couple of circumstances where the normal application process is not feasible or unavailable to the applicant.

What if I am the only parent or guardian?

Evidence of sole authority to apply for the minor must be submitted with the application in the form of:

  • S. or foreign birth certificate, Consular Report of Birth Abroad, or adoption decree, listing only the applying parent
  • Court order granting sole legal custody to the applying parent (unless child’s travel is restricted by that order)
  • Court order specifically permitting applying parent’s travel with the child
  • Judicial declaration of incompetence of the non-applying parent
  • Death certificate of the non-applying parent

What if the other parent/guardian is not able to appear?

The DS-11 application must be accompanied by a signed, notarized Form DS-3053: Statement of Consent from the non-applying parent/guardian

What if both parents/guardians are unable to appear?

The applying parent must submit Form DS-5525: Statement of Exigent/Special Family Circumstances. The statement must explain in detail the non-applying parent’s or guardian’s unavailability (ie. incarceration, custody order, restraining order, etc.) and recent efforts made to contact the non-applying parent.

Additional Guidance from the Department of Homeland Security:

  • If you’re escorting a minor child without the parents, have a letter from both parents indicating that you have permission to travel with the minor.
  • If the child is accompanied by only one parent, the parent should have a note from the child’s other parent. For example, “I acknowledge that my wife/ husband is traveling out of the country with my son/daughter. He/She has my permission to do so.” Or a court order that allows the travel without the other parent’s permission.
  • If a single parent has sole custody, a copy of the court custody document can replace a letter from the other parent.

What if my ex and I don’t get along and they won’t agree to getting a passport?

In many instances of divided parenting, whether by divorce or paternity, parents disagree about whether a child should have a passport or even travel outside of the country.

Can my Ex prevent me from getting a passport?

In short, yes.  If a parent refuses to sign a passport application, there aren’t any forms you can fill out to get around it.  The law is clear and is designed to protect against international parental child abduction, as well as child abduction and trafficking in general.

You can, however, pursue legal action and obtain the legal right to obtain [and hold] a passport for your child.  The main considerations for the Court are to determine:

  1. Risk of flight with the child in order to prevent the trial court from exercising jurisdiction over the child. This is especially relevant in situations where the parent applying for the Passport.  For a list of countries that participate in the 1980 Hague Convention on the Civil Aspects of International Child Abduction, visit the U.S. Department of State, Bureau of Consular Affairs.
  2. Length of time the child will be absent from the United States.
  3. Any legitimate good faith reason from the Applicant or the objecting party.

As stated, many times, however, the trial court has very broad discretion in determining family law matters.

This post is intended to provide general information on the requirements of obtaining a child’s passport.  If you need assistance with filing or responding to a Notice of Intent to seek a Passport for a Minor child, please contact the experienced attorneys at Banks & Brower, LLC at (317) 526-4630 or email us at info@banksbrower.com for an initial consultation to determine how we can help.