When winter’s brutal winds turn into spring’s warm breezes and the flowers are in bloom, parents’ thoughts turn to summer time and vacation. If you are lucky enough to be able to travel outside of the country, you want to take your children with you. But your co-parent is not agreeing to it. Now what?
The granting or renewal of a child’s passport can be a contentious issue among co-parents. You may not want your child to travel because of safety or disease concerns. You may not trust your co-parent and fear that he or she may abscond with your child. This situation would be even further complicated if your child travels to a country that is not a Hague signatory. The Hague Convention occurred in 1980 and as of this year, there are 93 states/countries who are signatories. Being a signatory means that your country agrees with the premise of the Hague Convention. That premise is, if you file a Hague convention action in one of those countries, you do not consider the facts and merits of the case but instead, figure out which country the case can be heard. The child has to be returned to the “member” country.
Applying for or renewal of a child’s passport, in the context of a custody matter is part of legal custody. That is the right to make major decisions including medical, educational and religious decisions. The Pennsylvania courts take this matter seriously. In the case R.M. v. S.B. the Mother lived in Pennsylvania and the Father in France. The child lived with Mother during the school year and the parties agreed the child would be with Father in France during the summer. Mother refused to renew the child’s passport. Father was forced to file a petition for emergency relief. The Trial Court granted Father’s petition and Mother was ordered to renew the child’s passport within two days of receiving money from Father and to provide proof that she had actually renewed it, as well as to notify Father when the new passport was received.
Father then filed a Petition to Modify Custody. The Trial Court ordered that Father have sole physical custody and that the child live with him during the school year and with Mother during school breaks. Mother appealed to the Superior Court. The Superior Court said that the Trial Court reached the correct result.
This case is a cautionary tale to those parents who think they can disobey a custody order. Although ignoring the passport renewal was not the sole reason the court decided to switch primary custody to Father, it was the major indicator of Mother’s pattern of attempting to alienate her child from Father. We want to avoid any problems with children’s passports during divorce. If you are really concerned that your co-parent is going to flee the country with your child, you can ask the court to hold the child’s passport. You can also have your attorney (or your co-parent’s attorney) hold the passport. If your child is under age 16, a passport application will not be approved unless both parents go with the child to apply or, the co-parent signs a document known as Form DS-5013 (Statement of Consent). This form must be signed and notarized, and you must include a copy of the front and back of your identification along with the form.
Either custodial parent has the right to file a petition for special relief in their local court, if they would like to obtain passport for their child when the other parent disagrees, or they wish to oppose the application or renewal of a passport for their child. Be advised that the court would not look kindly on a parent withholding their consent for little or no reason. You must back up your opposition with valid evidence not conjecture. If you have any questions, contact your family law attorney.