With spring break upon us and summer vacation around the corner, now is the time to plan for any legal issues that might make travel with your children more of a hassle than it needs to be.

If you are separated or divorced and have children, the first concern is whether you need consent from your ex to travel with your children.  Most custody agreements and court orders contain requirements for providing notice of any vacation plans as well as for sharing information such as dates, flight numbers, and contact information; even if you don’t have such an agreement or court order, early notice (in writing) to the other parent can be key.  Conversely, waiting until the last minute can give your ex ammunition to scuttle well-laid plans, not to mention draw the ire of a frustrated judge if you have to bring the matter to court.

In addition, there are legal implications for traveling with children, especially for international travel.

To obtain a passport, you must cooperate with your ex or, if necessary, obtain a court order.  All passport applicants under the age of 16 must apply in person using Form DS-11.  Be prepared to provide the following:

  • Your child’s Social Security number;
  • Evidence of your child’s US citizenship;
  • Evidence of your parental relationship to the child, such as a US birth certificate;
  • Parents/guardians of the child must present an identification document to the acceptance agent; and
  • Evidence of parental consent of both parents for the issuance of the child’s passport.

The decision to obtain a passport is a legal custody (the right to make important decisions) issue. To the extent that there is no court order awarding the right to make legal custody decisions to one parent, or if a court order or agreement states that legal custody is shared (meaning neither parent has the right to decide over the objection of the other), it may be necessary to obtain a further court order if parents disagree over getting a passport for their child.

Of course, the best way to go about obtaining a passport for your child is to do so with the consent of your ex; ideally, both parents would appear at the passport office. If one parent is simply unable to appear, that parent can give permission by completing Form DS-3053 “Statement of Consent” which must be submitted with the child’s passport application.  The parent that is unable to go with the child must sign and date Form DS-3053 in the presence of a certified notary public and must submit a photocopy of the front and back side of the ID that they present to the notary public with the form.

Once you’ve accomplished obtaining a passport, there are still potential hurdles if you plan to leave the country with your child.

Certain countries have strict requirements in terms of a single-parent traveling with minor children.  For example, Mexico requires a parent or legal guardian departing from Mexico with minor children to have a notarized letter from the other parent if traveling separately.  Canadian travel authorities require a notarized affidavit of consent if you are traveling with a minor who is not your own child or for whom you do not have full legal custody.

Airlines frequently have strict requirements for single parents traveling internationally with children.

Delta requires an original stamped or sealed birth certificate or certified copy and one of the following applicable items: Affidavit of consent from the non-traveling parent listed on the birth certificate; a court order that indicates full parental responsibilities/rights and legal guardianship for a sole parent or legal guardian; or where applicable, a death certificate of the other parent who is registered as the parent on the birth certificate.  American Airlines may require a letter of consent from the other parent.  JetBlue may require a notarized affidavit of consent from the non-traveling parent.

Perhaps most critically, if you are concerned that your ex may abscond with the children, it is critical to be proactive.  The State Department can issue a passport watch, which lets you know if someone applies for a passport for a child through the Children’s Passport Issuance Alert Program (CPIAP).  To find information regarding this process, visit the US Department of State website.

Many of these complications can be minimized or avoided by planning ahead. If you anticipate that your ex will not cooperate, you should contact a skilled family law attorney well in advance of any planned travel—especially international travel—to help navigate these challenging issues.

Written by Duquesne University Law Student Paige Thomas and Family Law Attorney Rob Weinberg

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