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Divorce Advice for Men | Fathers' Rights Divorce | Child Custody

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By Jennifer M. Paine

Attorney, Cordell & Cordell, Detroit office

Note: This is Part 1 of a two-part overview of overseas travel post-divorce. Click here to read Part 2.

Thinking about a trip with your children overseas for spring or summer break? 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 16 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, § 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 16 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 16, 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.

 

Note: This is Part 1 of a two-part overview of overseas travel post-divorce. Click here to read Part 2.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.


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