A summer trip to Europe. Spring break in Mexico. Visiting family overseas.
International travel can create incredible experiences for children. But when parents are divorced or separated, taking a child outside the United States involves more than simply buying plane tickets and packing a suitcase.
Parents frequently ask us:
- Can I get my child’s passport without my ex?
- Who gets to keep the passport?
- Do I need my ex’s permission to leave the country with my child?
- Can my ex stop me from taking our child overseas?
And sometimes the concern is much more serious: What if my ex wants to take our child somewhere I believe they may not come back from?
The answers depend heavily on the language of your Texas court order, the destination country, federal passport requirements, and, in some cases, the potential risk of international parental child abduction.
Here’s what Texas parents should know.
Start With Your Court Order
Before planning international travel with your child, the first thing you should do is read your custody order.
Texas orders may specifically address:
- Who has the right to apply for the child’s passport;
- Who may renew the passport;
- Who maintains possession of the passport;
- When the passport must be delivered to the traveling parent;
- How much advance notice must be provided for international travel;
- What information must be included in that notice;
- Whether the other parent must execute a consent to international travel; and
- Whether travel to certain countries is restricted or prohibited.
There is no substitute for reading your particular order. Two parents with seemingly similar custody arrangements may have very different international-travel rights.
Who Can Apply for a Child’s Passport?
For a U.S. passport, federal law and State Department rules come into play in addition to your Texas custody order. For children under age 16, the general rule is that both parents or legal guardians must consent to issuance of the passport. If one parent cannot appear in person, that parent can generally provide a notarized Form DS-3053, Statement of Consent.
There are exceptions. For example, one parent may be able to apply without the other’s consent if a court order grants that parent sole legal custody or specifically gives that parent authority to obtain the child’s passport. That makes the wording of the custody order particularly important.
Who Gets to Keep the Child’s Passport?
This is another issue that can, and should, be addressed in a custody order. An order may give one parent the right to maintain possession of the passport, or it may provide a mechanism for transferring the passport when the other parent plans international travel.
For example, an order might require the parent holding the passport to turn it over within a certain period after receiving proper notice of an upcoming trip. The State Bar of Texas family-law forms specifically contemplate orders governing the possession and transfer of children’s passports.
If your order addresses possession of the passport, follow the order and not an informal understanding of who “normally” keeps it.
Can I Take My Child Outside the United States?
Possibly.
There is no general U.S. exit rule requiring both parents’ permission every time a minor leaves the United States. But that does not mean a divorced parent can automatically take a child anywhere in the world whenever they choose. Your custody order may impose additional requirements or restrictions. The destination country may also require documentation showing that the non-traveling parent consented to the trip. The State Department recommends researching the specific country’s entry and exit requirements because those rules vary considerably.
So there are really several different questions:
- Does my Texas court order allow the travel?
- Do I have the required passport?
- Does the destination country require the other parent’s written consent?
- Does the airline or another country through which we are traveling have additional requirements?
You need to answer all of them before leaving.
What Is a Notice of Intent to Travel?
Many Texas custody orders contain provisions requiring a parent planning international travel to provide advance written notice to the other parent. A commonly used Texas family-law form is called a Notice of Intent for Child(ren) to Travel Outside the United States.
The notice may require information such as:
- Departure date and time;
- Return date and time;
- Airline and flight numbers;
- Transportation information;
- Countries and cities being visited;
- Addresses and telephone numbers for destinations;
- Dates the child will be at each location;
- Information about other people traveling with the child; and
- Any portion of the trip during which the traveling parent will not personally accompany the child.
The commonly used State Bar form provides for notice at least 21 days before departure.
But this is important: Your order controls. Do not assume that 21 days applies simply because you’ve heard that’s the rule. Read the actual international-travel provisions in your decree or custody order.
What Is a Consent to Travel?
A Consent for Child(ren) to Travel Outside the United States serves a different purpose. The Notice tells the other parent: “Here is where I intend to take our child and when.”
The Consent essentially documents: “I know about this international trip and consent to our child traveling.”
Texas family-law forms contemplate both documents.
A written consent can also be extremely useful while traveling. Some foreign countries require a parent traveling alone with a child to carry a signed or notarized consent from the non-traveling parent. U.S. government travel guidance recommends carrying appropriate written consent and checking the destination country’s requirements.
Again, your particular order may require the other parent to execute the consent if certain conditions have been satisfied.
Can My Ex Just Refuse to Sign the Consent?
That depends on the order and the circumstances. If your order requires a parent to execute the necessary consent documents for authorized international travel, simply saying “I don’t want you taking the child” may not end the discussion. On the other hand, there can be legitimate reasons for objecting to international travel. And this is where international travel disputes can become much more serious.
What If the Other Parent Wants to Travel to a Non-Hague Convention Country?
This is an important distinction. The Hague Convention on the Civil Aspects of International Child Abduction provides an international legal framework for seeking the prompt return of children who have been wrongfully removed from or retained outside their country of habitual residence. When an abduction involves a country that is a treaty partner with the United States, the Convention may provide a legal mechanism for pursuing the child’s return.
When the child is taken to a country where the Convention does not apply between that country and the United States, recovering the child can be substantially more difficult. The State Department specifically notes that its Hague application process applies when a child is abducted to or retained in a Convention partner country.
Texas law recognizes this concern. When evaluating a potential risk of international parental child abduction, a Texas court may consider whether the proposed country is a party to and compliant with the Hague Convention, whether it provides for extradition of a parental abductor and return of the child, and other characteristics of the country’s legal system.
So if your co-parent says: “I’m taking the kids overseas.” One of the first questions may be: Where?
A trip to a Hague Convention partner country with an established record of compliance can present a very different risk analysis than travel to a country where obtaining the child’s return could be extraordinarily difficult.
What If the Country Has a Level 4 Travel Advisory?
The U.S. Department of State issues travel advisories for destinations around the world. Level 4 means “Do Not Travel.” If the other parent proposes taking your child to a Level 4 destination, that is not something you should treat as an ordinary vacation disagreement.
Texas law specifically allows courts evaluating international-abduction risks to consider whether the State Department has issued a travel warning regarding the country and whether the country is experiencing active military action or war. The court may also consider circumstances that could endanger the child’s physical health or safety.
A State Department advisory does not, by itself, rewrite your custody order. But a serious safety concern may provide a basis to seek court intervention before the trip occurs.
And timing matters. If international travel is imminent, waiting until the child is already overseas can dramatically change the problem you’re trying to solve.
What Can a Texas Court Do If There Is a Genuine Abduction Risk?
Texas law gives courts significant tools when credible evidence indicates a potential risk of international parental child abduction. Depending on the circumstances, a court can impose measures that include:
- Prohibiting removal of the child from Texas or the United States;
- Requiring surrender of the child’s passport;
- Prohibiting a parent from applying for a new or replacement passport or visa;
- Requiring notice to the U.S. Department of State and a foreign embassy or consulate;
- Requiring a parent to post a bond sufficient to help cover the cost of recovering the child;
- Authorizing appropriate law-enforcement measures; and
- Including provisions identifying the United States as the child’s country of habitual residence.
These are serious remedies, and courts do not impose them merely because one parent dislikes the other’s vacation plans. But when credible evidence of an international-abduction risk exists, Texas law provides mechanisms designed to protect the child.
What If I’m Worried My Ex Is Secretly Trying to Get a Passport?
Parents concerned about international abduction should also know about the State Department’s Children’s Passport Issuance Alert Program (CPIAP). A parent or legal guardian can enroll a child under 18. The State Department can then alert the enrolled parent if it receives an application for a U.S. passport for that child.
However, CPIAP has an important limitation: It does not prevent a foreign government from issuing that child a foreign passport.
This can be especially important when the child has or may have dual citizenship. The State Department recommends contacting the appropriate foreign embassy or consulate if there is concern that another country could issue the child a passport.
International Travel Shouldn’t Automatically Become a Custody Battle
International travel can be enormously beneficial for children. They can experience different cultures, visit extended family, learn history, and see parts of the world they might otherwise never experience. Divorced parents should not automatically treat every international trip proposed by the other parent as a threat. At the same time, international travel requires a level of communication and planning that a weekend trip within Texas does not.
Both parents should know:
- Where is the child going?
- Who is traveling with the child?
- Where will the child be staying?
- When is the child coming home?
And when legitimate safety or abduction concerns exist, those concerns should be addressed before the child leaves the United States.
Final Thoughts
International travel after divorce can range from completely routine to extraordinarily complicated. Before making plans, parents should:
- Read their custody order carefully;
- Determine who has passport rights;
- Follow all notice requirements;
- Obtain any required consent;
- Review destination-country requirements;
- Check current State Department travel information;
- Determine whether the destination is a Hague Convention partner with the United States; and
- Address legitimate safety or abduction concerns before departure.
Most international travel between co-parents can be handled with planning, communication, and compliance with the court order. But when there is a genuine concern that a child may not be returned, or that the proposed destination creates a serious safety risk, the issue should be addressed quickly.
Have Questions About International Travel With Your Child?
International travel provisions can be an important part of Texas custody orders, particularly for families who travel frequently, have relatives overseas, or have ties to other countries. At Grinke Stewart Family Law, we help parents understand passport rights, international-travel provisions, notice and consent requirements, and options when there are legitimate concerns about a child’s safety or return to the United States.
If you’re planning international travel with your child, or have concerns about travel proposed by your co-parent, understanding your court order before the tickets are booked and the child leaves the country can make all the difference.
