In Illinois, throughout the divorce or parentage process the parties are required to exchange and submit parenting plans. A parenting plan is “a written agreement that allocates significant decision-making responsibilities, parenting time, or both.” 750 ILCS 5/600(f)
The parties come to an agreement on the parenting plan or the court orders a parenting plan that will govern the parties’ future relations in regards to the children.
A parenting plan must include “provisions requiring each parent to notify the other of…travel plans” 750 ILCS 5/602.10(e)(9)
So, the other parent is required to provide notification of any travel plans outside of the country. Typically, the instructions in the parenting plan are far more detailed with deadlines and instructions regarding where the children can travel.
If there’s an objection to the travel, the parenting plan should also provide details on how to handle that objection. The parenting plan may require that both parents agree to the proposed travel. This arrangement gives each parent essentially veto power over the child’s travel schedule.
Parenting plans often include a clause requiring that all disagreements, including travel disagreements, be addressed in mediation first. This essentially provides veto power as well because mediation typically requires months (especially if you elect to use Cook County Mediation services)
If the parties cannot agree and do not have to go to mediation, the parties go to court to ask the judge when and where the child can travel. The judge will make is decision based on the best interests of the child. In my experience, this amounts to the judge asking questions to determine if the child will be in danger on the trip and whether the parent will bring the child back, especially if the trip is to a foreign country.
If the parent has any kind of overnight visitation at all, the court will likely decide that the travel is safe. To determine if the parent will bring the child back to Illinois after the trip, the court will usually ask, “Has the child ever been to this country before.” If the child has been to the country before and the parent brought the child back, the judge will likely allow the travel.
If you still object to the travel, you can alert the judge to the fact that the country they’re travelling to may not observe American court orders that require the child to return.
Many countries have entered into a treaty that requires them to acknowledge the parenting plan orders of other countries. So, in Mexico, you can walk into a Mexican court with an American order and the Mexican court will order the child returned. Some countries, like India, have no such rule and the courts in India will not acknowledge an American order and will presumably review the situation “from scratch” with great prejudice towards the Indian party.
There are steps you can take out of court to insure your child does not travel internationally without your permission.
No one can travel internationally without a passport.
You can enroll your child in the State Department’s Child Passport Issuance Alert Program (CPIAP). This requires the State Department to contact both parents if either parent tries to apply for a passport for the child. This prevents the possibility of forgery or subterfuge in getting a child’s passport.
If the child has a passport, you can request that the court require you or a third-party hold the passport until an agreement is reached or an order has issued.
If your child is a dual-citizen or the citizen of another country, your child may be issued a passport for that country and could travel on that passport. In that situation, you must call the consulate of that country and alert them to the facts and hope they take appropriate measures to prevent issuance of a passport. Most countries in the world have a consulate in Chicago and you may find you get much better results in person than you would via a letter or telephone.
However, if you want your child to travel internationally, you must show the State Department that both parents want a passport to be issued.
If you cannot get the other parent’s cooperation you must submit a copy of the custody order and/or parenting plan which allows you exclusive control over the child’s travel.
Anecdotally, the staff at Chicago’s O’Hare or Midway airports will ask, “Does this kid have permission from the other parent to travel? Let me see an order or an agreement.” While this happens, there is actual formal exit control in the United States.
Please talk to an experienced lawyer to determine if and how your child can travel internationally.