Parents might travel outside of the United States for many reasons. An ex-spouse might want to take your children out of the country for vacation or to visit relatives living in another country. However, are they allowed to do so?
Does My Ex-Spouse Have Permission to Leave the Country With Our Children?
A parent cannot take a child out of state without the other parent’s consent or a court order. However, your child custody order could have travel restrictions and permissions. Therefore, your first step is to review your custody order.
Some custody orders contain specific provisions regarding travel with the children. This situation often arises when one parent is from another country or lives in another state.
Your child custody order could contain travel restrictions or permissions related to the following:
- Destinations for travel
- The duration of travel
- Notice periods a parent must give to the other parent before traveling
- Activities children can engage in during travel
A custody order could require the parents to provide written consent before traveling out of the state with their children. The order could also prohibit all travel outside of the state without a court order.
Petitioning the Court for Approval to Take Children Outside of the Country
If you do not consent to your ex-spouse taking your child out of the country, your ex-spouse must file a motion with the court seeking permission to travel outside of the United States. A motion might also be necessary if the custody order requires court permission for international travel.
Judges must balance the risk of traveling outside of the country with the benefits.
Factors judges consider when deciding whether to grant a motion to take children out of the country include:
- The purpose of traveling to another country
- The specific travel plans provided by the parent
- The reasonableness of the parent’s request to take the children out of the United States
- Past parental behavior and disputes
- The parent’s proposal for making up parenting time the non-traveling parent will miss while the child is away
- Whether the country the parent intends to visit is safe
- Whether the country is a signatory of The Hague Convention
- Proposed plans for continued communication between the children and the non-traveling parent
Judges can consider other relevant factors that impact the child when deciding whether to allow a parent to remove the child from the state or country. If your ex-spouse wants to travel with your child, it is best to seek legal advice immediately. A child custody lawyer can advise you of your legal rights.
Enroll Your Children in the Children’s Passport Issuance Alert Program
Parents who are concerned that their ex-partner might try to take their child to another country can register their children with the Children’s Passport Issuance Alert Program. Enrolling in the program means you are contacted if your child’s other parent applies for a passport.
Generally, both parents must consent for a child under 16 years old to obtain a passport. The child must appear in person with their parents or legal guardians to apply for the passport. If a parent cannot appear with the child, the other parent must have a notarized statement from the non-appearing parent consenting to the passport application.
An exception exists if a parent has a court order granting them sole custody of the child. In that case, both parents would not be required to appear in person or provide a notarized statement.
Should I Call a Child Custody Lawyer if I Fear My Ex-Spouse is Planning to Leave the Country With Our Child?
Trust your instincts. If you notice signs that indicate your spouse might try to take your child, act on those suspicions. It is better to err on the side of caution than to try to fight your ex-spouse after they leave the state.
Call a child custody attorney immediately. A lawyer will review your situation and advise you on the legal steps to protect your child. The attorney might advise filing an emergency motion with the court seeking a temporary order prohibiting your ex-spouse from removing your child from the state.