Who gets to hold my child’s passport when not traveling?
The Department of Homeland Security and the State Department have instituted certain policies and procedures for single parents travelling internationally with a child. There have been plenty of battles over whether one parent can travel internationally with the child and whether or not they can obtain a passport for the child. Often times the battle is not just over obtaining a passport for your child. Rather, the battle commences once the passport has been issued as to which parent should hold the child’s passport when the child is not traveling. Lack of trust or fear of one party absconding with the child has led to litigation over who should, or more accurately, who should not, be able to have possession of this coveted documentation.
As our Supreme Court said in Pascale v. Pascale, 140 N.J. 583, 599-600 (1995), primary residential custody envisions that the primary caretaker be able to make the day-to-day decisions that fall outside of major decisions with some autonomy and without the need for endless discussion. Our law envisions that something as seemingly significant as a child’s religious upbringing as something that falls within sort of day-to-day decisions that are ceded to the parent of primary residence (PPR). Id. at 599 and see also Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005). Thus the location and possession of a child’s passport is not the sort of decision that, absent unfit behavior, should be removed from the PPR’s purview.
Unless you can show some sort of objective evidence that a party is incapable of holding the child’s passport or that it will be used as a “weapon”, the Court will most likely allow the PPR to be in possession of the passport. With most cases on litigated international travel, the Court will normally afford the parties a large window of time, for example sixty days, at a minimum, for one party to notify the other of the intent to travel internationally, thereby affording them the opportunity for the Court or a mediator to intervene to compel production of the passport should they need it.
As noted in Costa v. Costa, 440 N.J. Super. 1 (App. Div. 2015), our Appellate Division said, “[a] passport application may be executed on behalf of a minor under age sixteen by only one parent or legal guardian if such person provides an order of a court of competent jurisdiction ‘specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parenting or legal guardian.’” 440 N.J. Super. at 5 (citing 22 C.F.R. § 51.28(a)(3)(ii)(E), (c)(3)). Thus, since the Court can allow a child to travel with one parent, without the consent of the other, should one parent unreasonably withhold the child’s passport, pursuant to Costa, supra, R. 1:10-3 and R. 5:3-7(a), the Court also has authority to allow a parent to obtain a duplicate passport or to compel a parent to release a passport, if need be. As such, the PPR should be able to hold the passport as the other party has adequate methods of resolve available to them should it become an issue.
If you or someone you know has questions about their ability to travel internationally or concern over the other parent having possession of the child’s passport, contact one of our family law attorneys in New Jersey at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.
Written By: William P. Lemega, Esq.