Legal Assistance for Military Personnel

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INTERNATIONAL CUSTODY AND VISITATION ISSUES

1. Q. My ex-husband has legal custody of our daughter. He says he’s going to take her overseas with him to his next assignment. Can he do that?

A. Yes - unless a judge orders him not to take her. A parent with legal custody can take a child with him wherever he goes to live in the absence of a court order prohibiting this.

2. Q. Can he get a passport for her? She’s only 11.

A. The U.S. Department of State issues almost 1 million passports annually to children under 18. These passports are valid for 5 years (as compared to an adult passport which is good for 10 years). He can get a passport for her as well as a military dependent ID card (you have to be 10 years old or above to get one of these).

3. Q. How do I get a passport for a child?

A. Either parent can apply for a passport for a child who is a U.S. citizen. The parent who applies does not have to be an American citizen. The application is available at designated Postal Service offices or also on-line at:
http://travel.state.gov/passport/forms/ds11/ds11_842.html. Both parents must sign the form if the child is under 16 years of age. Issuance of a passport to one parent doesn’t automatically stop the other one from obtaining a second passport for the child. Once it is issued, the passport’s use is not “tracked” or controlled by the State Department. Either parent can request and obtain information as to the issuance of a passport for a child.

4. Q. I am afraid my wife will kidnap our son. Isn’t there a way I can find out if she’s gotten a passport for him?

A. Every year the U.S. Department of State receives nearly 3,000 reports of actual or expected abductions. About 1,000 of these involve children of dual nationality. The State Department has set up a “Passport Issuance Alert Program” as a lookout system for the denial of U.S. passports. While it’s not a passport tracking system, it does provide information to a parent or court about when a passport application is submitted on behalf of a child.

5. Q. How does the Passport Issuance Alert Program work?

A. It works in two ways. If the State Department has on file a court order that prohibits travel outside the U.S., grants custody to the parent who isn’t applying for a passport, or grants joint custody to both parents, then the passport will be denied. If the State Department has on file a written request for information for a parent, guardian or court, then the Department will notify that parent, guardian or court if a passport application has been submitted for a child. The Passport Issuance Alert Program remains effective until the child turns 18 or a written request is made to end it. Changes in address, phone number or name should be made in writing.

6. Q. If one parent can’t attend and apply with a child under 16, what will happen?

A. The basic rule is that both parents must consent (using form DS-11) to the authorization of a passport for a child under 16. If both parents are willing to consent, but one cannot appear in front of an agent at the same time as the other parent and the child to sign the DS-11, then the unavailable parent’s consent may be obtained by a notarized Statement of Consent, using form DS-3053. That consent must be less than three months old, though, at the timing of submitting the application.

7. Q. For a child under 16, are there exceptions to the requirement that both parents consent?

A. Yes. The applying parent must file a DS-3053, explaining why one parent’s consent cannot be obtained. Typically, situations where one parent is deceased, the applying parent has court-ordered sole custody, or where a court specifically authorizes , by a court order, a parent to travel with the child.

(rev. 7/1/11)

The TAKE-1 series of client handouts is a project of the North Carolina State Bar’s Standing Committee on Legal Assistance for Military Personnel. For comments or corrections, contact Committee member Mark E. Sullivan at: Mark.Sullivan@ncfamilylaw.com, or at 2626 Glenwood Avenue, Suite 195, Raleigh, NC 27608 [919-832-8507]

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