What happens when my kids’ other parent won’t consent to an international trip?

With 60-degree weather hitting the Garden State this week (!), we’re all reminded that spring 2018 is right around the corner.

That means many of you will be planning spring break and/or summer vacations with your children starting now. Some of your plans may take you to exotic international destinations including Mexico, the Caribbean, or even Europe.

What many parents do NOT realize (until it’s too late) is that shared legal custody, by itself, does not entitle you to obtain a passport from the federal government WITHOUT the consent of your children’s other parent. This applies to all U.S. children under 16 years of age.

The U.S. State Department provides some general information pertaining to passports and minors here.

In rare circumstances where one parent has obtained sole custody by court order? That parent can usually make sole passport decisions on his or her own; he or she will still need to provide evidence of sole legal authority in order to complete the passport application. Most commonly, this proof comes in the form of a signed court order explicitly granting sole legal custody to the applicant parent.

Most parents, however, have what’s called “shared” legal custody even if only one parent serves as the so-called primary physical parent. Confused? No worries. Click here for a more in-depth discussion of the different types of custody.

What you need to know for now: in cases of shared legal custody, BOTH parents must consent in order to successfully obtain a passport for a young child.

Don’t give up quite yet. If your children’s other parent refuses to provide his or her consent for any variety of reasons, you can file a motion application with the New Jersey Superior Court’s Family Part. 

But be forewarned: this process takes time! So if you wait until the last minute, you’re likely going to have your travel plans upended. A lot of ‘primary’ parents don’t know this or understand the important custodial distinctions until it becomes a problem. A hearing date can take several weeks to schedule, and that time frame does not take account of the time it will take to complete the passport application process.

What can you expect from the court when you’re finally in front of a judge? While a New Jersey state family court judge cannot tell the federal government what to do, i.e. issue a passport, the court can issue an order granting, for example, power of attorney to the applicant parent so that he or she can apply for the passport without the other parent’s consent. There is no hard-and-fast rule for these cases or fixed list of criteria. That being said, be prepared to explain some things to the judge in support of your application to improve your chances, including but not limited to:

  • The “reasonableness” of your request and the unreasonableness of the other party’s position
  • Any “special” or unique circumstances, i.e. a family reunion or family wedding
  • Specific travel plans including hotel and contact information as well as a detailed travel itinerary
  • Communication plans for children with the non-traveling parent particularly if it’s a longer vacation with younger children
  • Make-up time proposals if the non-traveling parent is missing a substantial amount of parenting time due to the trip
  • Is the destination country a signatory to the Hague Convention?
  • Is the travel plan safe?
  • Is it situationally possible for the non-traveling parent to go along?

This is a big topic. As ever, the specific circumstances of your case govern the right legal approach and ultimate outcome. There are also other possible important angles which we haven’t discussed in this blog post due to time constraints such as (1) when one parent won’t turn over an already-issued passport or (2) what to do if you’re legitimately concerned that the other parent may flee and not return to the country with your children.

Do you need assistance navigating these concepts? Or tackling an international vacations-related dispute between you and your children’s other parent?

Experienced assistance is a quick phone call or email away. 

We deal with these issues on a regular basis. If you have any questions regarding international travel and parenting time or custody  disputes generally in New Jersey, including obtaining a passport for your child(ren), please contact us online today or call (856) 546-1350 for a confidential consultation with one of our skilled family court lawyers. Don’t go through this alone!

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Matt Rooney

Matt Rooney

Matt Rooney is a former Superior Court law clerk, New Jersey attorney and noted political commentator who focuses his practice on family law, municipal court and personal injury matters.
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