Ask The Barrister:
International Travel and Parental Consent

by Rachel Elovitz

Dear Barrister:
A client of mine (we’ll call him Ital E. Bound) is hoping to take his two children, eight and 10 years old, to Hawaii and Italy this summer. His ex-wife has indicated that she will not sign a travel consent form.

My client’s Settlement Agreement (which was incorporated last October into a Final Judgment and Decree of Divorce) provides that he is the children’s “primary” physical custodian. His ex-wife was designated the children’s “secondary” physical custodian. They are joint legal custodians (i.e., they are required to consult in good faith when making decisions about the children’s education, medical care and treatment, religious upbringing, and extracurricular activities). My client, however, has ultimate decision-making authority on all matters of legal custody in the event of a stalemate. Given these facts, is it really necessary for him to obtain his ex-wife’s consent to take the children to Hawaii and Italy?

Ironically, I have another client (we’ll call her Abbie Duct) whose ex-husband absconded with their three-year-old son about 10 days ago. Ostensibly, no one in airport security or customs cared that the father did not have a signed travel consent form from my client. My client has filed a contempt action and taken out a warrant for interference with child custody. Other than that, I’m not sure how to direct her. What would Dear Barrister do?

Thank you,
Overwhelmed in Oakhurst

Dear Overwhelmed:
According to the Transportation Security Administration (TSA), a travel consent form is not needed if a parent is traveling with minor children domestically. Your client would therefore not need his ex-wife’s consent to take his eight- and 10-year-old children to Hawaii. Of course, my presumption is that he is planning the trip during his parenting time and that the parties’ agreement does not require them to otherwise obtain each others’ consent when traveling with the children.

As for international travel, my understanding (after speaking with the State Department’s Office of Children’s Issues) is that there are no exit controls in the United States, so if parents and children traveling together already have valid passports, they should be able to leave the country, unless a flag has been placed on the child or children’s passports (which might be the case if they were fraudulently obtained). In other words, if the children have valid passports, no one at the airport is going to be asking the parent if he or she has a travel consent form.

However, when a parent seeks to obtain a passport for a child, the travel consent form will be required unless the parent traveling with the child (or children) is his or her sole legal custodian – not sole physical custodian, sole legal custodian. A joint custodian with ultimate decision-making authority will still need the consent of the other parent. That being the case, Ital E. Bound should be unable to secure passports for the children absent the written consent of the children’s mother.

You can help Abbie Duct recover her three-year-old son by suggesting that she contact the Office of Children’s Issues at the State Department (or doing it with her). They assist parents whose children have been abducted, which is a federal offense. The contact number for the International Parental Child Abduction Division is 1-888-407-4747. Your client can also email them at AbductionUSCA@state.gov or PreventAbduction@state.gov. Their web address is Travel.State.Gov/childabduction.

You might also recommend that Abbie file a missing person’s report and that she ask to have her son’s name entered into the National Crime Information Center (NCIC) database. You might further recommend that she call the National Center for Missing and Exploited Children (NCMEC). Their 24-hour hotline is 1-800-The-Lost (1-800-843-5678) and their office telephone number is 703-224-2150. The NCMEC and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) in cooperation with the American Bar Association put together a publication, “Family Abduction – Prevention and Response,” another potential resource for you and your client. The 2009 sixth edition by Patricia M. Hoff, Esq., can be found at http://www.missingkids.com/en_US/publications/NC75.pdf. You may also want to review the Amber Alert Legal Database, which can be found at http://www.amber-net.org/amberstatutes.htm.

Perhaps the greatest way to stop child abductions is through preventative measures. In the future, you may want to let your divorcing clients know about the Children’s Passport Issuance Alert Program (CPIAP). It is one of the State Department’s tools in preventing international parental child abduction. Through it, parents can register children under 18 in the Passport Lookout System. When a passport application is submitted for a child registered in CPIAP, the State Department will contact the child’s parents. If a parent objects to the issuance of the passport, CPIAP will alert all U.S. passport agencies, U.S. embassies, and consulates abroad.

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