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THE TRAVEL VETO: HOW YOUR EX CAN THWART YOUR TRAVEL PLANS, AND HOW TO AVOID IT

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Thinking about a trip with your children overseas? Maybe a long weekend for a sightseeing safari, or volunteering in Haiti, or cruising in the Mediterranean this summer? Think again. If your children are sixteen or younger and need passports, your ex could thwart your travel plans and send you back to court fighting first.

It's a power woefully addressed in divorce decrees, if not wholly forgotten: the Two Parent Consent Law, i.e., the one parent veto power. Here is everything you need to know and how to avoid your ex's veto:

The federal Two Parent Consent Law, Pub L No 106-113, ยง 236, 113 State 1501 (1999), regulates passport applications for minors. A "minor" is an unmarried person under age eighteen. 22 CFR 51.27. Minors age sixteen and older may sign their own application, or their parents or individuals in loco parentis (authority like parents, such as guardians) may apply for them. To apply for a passport for a minor under age sixteen, however, both parents must consent, in writing or the applying parent must provide documentation showing his or her sole authority to obtain the passport. This "sole authority" may be in a sole legal custody order, an order giving the parent permission to travel with the child, an order terminating parental rights, or a notarized statement that the other parent consents or is unavailable to consent. "Unavailable" does not mean merely unreachable (e.g., your ex did not answer the telephone last night) but physically unavailable (e.g., your ex fled to Vegas five years ago, you have not heard from her since and she is listed as a missing person). The Secretary of State may also issue a passport "for compelling humanitarian reasons related to the welfare of the child," such as may occur when parent and child leave a batterer. See generally, 22 CFR 51.27 and related regulations.

As more jurisdictions jump on the "joint custody presumption" wagon (I am happy to report for fathers everywhere), the circumstances in which one parent has "sole authority" to apply for a passport are exceedingly rare. For most families, both parents will have decision-making power, if not joint physical custody, for their children. This includes the power to deny consent for a passport application, even for a "deadbeat" parent who fails to exercise any visitation and merely clutches legal custody rights like a pest bent to both you.

What can you do if your ex refuses to consent?

Tips and Tricks

Before rushing to court, speak to your ex to calm any qualms and rationalize any fears. Provide your ex with confirmations for airport departures and arrivals, hotel addresses and telephone numbers, and cell phone numbers where you and the children can be reached at all times. Assure your ex that you will list her as the children's emergency contact in their passport applications and on the inside of their passports. Make an itinerary for significant events, such as the days you will be at the beach or the museum or on a tour outside of phone's reach.

But if your ex still threatens the veto, try these tips and tricks:

Motion to Clarify: Usually, ex-spouses disagree because their decree is ambiguous, not because one ex flagrantly disregards a particular provision (although that does happen). Do not be discouraged if your decree is ambiguous. It is a product of human language, try as we lawyers might to make decrees crystal clear. If your decree is ambiguous, ask your court to clarify it. A motion to clarify asks the court to interpret what a provision meant when issued, according to the circumstances at the time. That is, what did the provision mean on the date the court granted the divorce? Did a provision granting each parent "decision-making power during that parent's time" mean "all decision-making" or "decision-making, except when the law requires both parents' consent"? Did a provision granting each parent "two weeks of vacation time" in the summer mean "two weeks of vacation time anywhere" or "two weeks of vacation time anywhere in the United States"? What did the court and the parties contemplate at the time? If you are certain that your interpretation is correct, try this motion.

Motion to Modify: What if your interpretation is incorrect, your decree does not contain a travel provision or you do not like the provision it does contain? Ask your court to modify it. A motion to modify asks the court to change a provision based on circumstances since the court issued the decree. Each jurisdiction uses a threshold, or standard, to prevent parents from coming to court repeatedly for custody modifications. In general, there must be a "change in circumstances" or "proper cause" since the decree before the court will consider a modification. However, if you couch the motion as a motion to modify a term, rather than a motion to modify custody, you might avoid this threshold. In most jurisdictions, parenting time terms should change as the interests of the child change. Therefore, courts apply the "best interests of the child" standard when considering whether to modify a term, rather than the threshold. See, e.g., VanOdsell v VanOdsell, 2008 Ohio 5843 (Ct App 2008) (father's motion to enjoin mother from obtaining passport to take child to Switzerland should have been decided under the best interests of the child standard). Be sure to discuss your jurisdiction's rules with an attorney first, as they may be different. You do nothing good, and a whole lot of bad, for your cause if you cite the court to the wrong rules.

Motion to Compel: If your ex does disregard your decree, ask the court to compel her action. A motion to compel asks the court to bring the opposing party to court to explain why he or she disregards the court's orders (to "show cause") and to issue an appropriate remedial order, which may include an order requiring action, contempt sanctions and attorney fees.

Take a certified copy of your decree and any subsequent orders for your motion when you apply for your children's passports. A certified copy is more reliable because it bears the court's stamp or seal as a sign that it is bona fide, not a phony. You may attach this to the passport application as evidence of your "sole authority" for applying - according to the court, even if your ex disagrees.

Time to Use the Veto?

Has your ex threatened to take your children out of the country without your approval? Maybe to a secret destination? Do you think she has or will apply for passports? Does she already have them? It may be time for you to exercise your veto with one or more of these options:

Passport Confiscation: State courts have the authority to order a parent to surrender a child's passport to the court or to a third party of the court's choosing. The order is enforceable under state law, and the Department of State will honor the order by denying a new or renewal application. 22 CFR 51.27. The parent obtaining the order should send a certified copy to the Department of State's Office of Children's Issues with a written request for the Department to deny any passport application.

Alert Program: The Department of State's Passport Name Check Clearance System alerts parents when it receives a passport application for their child. To sign up for the alert, the part must send a written request to the Department of State with a copy of a birth certificate or other appropriate order as evidence of the parent's relationship to the child. The alert request remains in effect until the parent revokes it or the child turns age eighteen, whichever occurs first.

Court Promptness: The Department of State does not track or control passports once issued. Moreover, it is very difficult to locate children once they leave the country. Therefore, seek court action promptly with one of the motions described above.

Prepared Decree: Why not address international travel in your divorce decree? There is no reason not to. A simple provision like the following restates the Two Parent Consent Law but gives consequences for the unreasonable parent: "Neither party shall travel with the children to a location outside the United States without the other party's prior consent, which shall not be unreasonably denied; to effectuate this provision, the parties shall promptly execute all reasonably necessary documents, including passport documents, and the non-compliant party shall be responsible for the other party's actual attorney fees and costs to enforce this provision in this or another court or administrative body." Or, if you have a trip planned, try a provision like this: "The parties agree that party X may travel with the children to destination Y. The parties shall promptly execute all reasonably necessary documents, including passport documents, to permit this travel. If party Z fails to cooperate, then this document shall serve as party X's sole authority to travel with the children, including the authority to obtain passports, and party X shall be entitled to actual attorney fees and costs for having to enforce this provision in this or another court or administrative body."

If you suspect your ex has abducted your children, contact the police immediately. Make a report, and exhaust all avenues in your jurisdiction to locate your children. Also contact the federal National Center for Missing and Exploited Children. NCMEC works with the Department of Justice and the Department of State to manage international child abduction cases. You should contact an attorney immediately for assistance, as there are time limits as short as one year that may apply.

To Learn More

To learn more about international travel with children, please contact an attorney. You might also contact the Department of State's Office of Children's Issues by writing to 2A-29, 2201 C Street NW, Washington, DC 20520, by calling (202) 736-9130 or by faxing (202) 736-9131. You may also search online at www.travel.state.gov.

Otherwise, your ex could thwart your trip with your children via her vindictive veto.

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