Illinois divorce and passports

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Children’s Passports After An Illinois Divorce

Illinois divorce and passports

Illinois divorce and family courts have a lot of power…in Illinois.  Once a parent or child is outside of Illinois, it becomes much more difficult for an Illinois domestic relations court to enforce their orders. If the children leave the United States, enforcing parenting time and decision-making issues becomes near impossible. Because of this, the issue of who holds the children’s passports after an Illinois divorce becomes extremely important.

What Is A Passport?

A passport is a travel document that identifies the passport holder as being eligible to enter into their own country.  So, the primary purpose of a United States passport is that it lets a United States citizen re-enter into the United States.

In fact, U.S. Law requires that have a passport to both depart and enter the United States.

“[I]t shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.”  8 U.S. Code § 1185(b)

Passports are also used as a form of identification when entering other countries. Each country will have its own policies and laws in regards to entry of foreigners.

How Do You Get A Passport For Your Child?

To apply for a passport for a minor child of divorced parents under the age of 16, you need to fill out form DS-11.

If both parents are applying for the child’s passport together, “both parents or the child’s legal guardian(s) must appear and present the following:

-Evidence of the child’s U.S. citizenship; AND

-Evidence of the child’s relationship to parents/guardian(s); AND

-Original parental/guardian government-issued identification AND

-A photocopy of the front and back side of presented identification” U.S. State Department Form DS-11

A U.S. birth certificate with the parents’ names listed on the birth certificate should be sufficient to satisfy these requirements.

If only one parent applies for a child’s passport, there are much more stringent requirements.

“IF ONLY ONE PARENT APPEARS, YOU MUST ALSO SUBMIT ONE OF THE FOLLOWING:

Second parent’s notarized written statement or DS-3053 (including the child’s full name and date of birth) consenting to the passport issuance for the child. The notarized statement cannot be more than three months old and must be signed and notarized on the same day, and must come with a photocopy of the front and back side of the second parent’s government-issued photo identification; OR

– Second parent’s death certificate if second parent is deceased; OR

– Primary evidence of sole authority to apply, such as a court order; OR

– A written statement or DS-5525 (made under penalty of perjury) explaining in detail the second parent’s unavailability.” U.S. State Department Form DS-11

So, if there’s been a divorce or parentage action, the parent applying for a passport without the other parent will have to show a court order that gave that parent sole custody.

If you don’t have sole custody (almost no one really has sole custody of a child in Illinois in either form or effect) then you need the other parent’s cooperation to get a passport for the child.

If the other parent won’t cooperate in getting a passport for the child, you’ll need to go to court to get an order allowing a parent to apply for a passport.  The U.S. State department will honor this court order and issue a passport to a single parent because of it (I have done this dozens of times for my clients).

If you believe the other parent would forge any of the above documents in order to issue a child a passport without your knowledge, you can sign up for the State Department’s Passport Issuance Alert program.

Who Holds The Child’s Passport After An Illinois Divorce?

If a parent has sole custody or has an order allowing them to apply for a passport unilaterally, that parent will also hold the passport. 

Otherwise, the parents must come to an agreement as to who will hold the children’s passport.  That agreement can be oral or the agreement can be written within the parties’ Allocation of Parenting Time And Parental Responsibilities, a document that accompanies every final Illinois divorce decree or Illinois parentage action.

If the parties do not agree as to who will hold the child’s passport, the parties must petition the court to decide who will hold the child’s passport. An Illinois court will decide who will hold the child’s passport at the same time the court authorizes specific overseas travel.  Otherwise, what’s the point?

There is no law in Illinois regarding children and overseas travel.  Whether you are arguing for or against overseas travel, you can use the same principles that a court considers when allowing a child to move.

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” 750 ILCS 5/609(a)

So, the parent advocating for overseas travel must prove that such travel is in the best interests of the child AND that the child will return after said travel.

What Is the Right To Travel Inside and Outside Of The United States?

You do not need permission from the other parent to travel within the United States.  It is your constitutional right to go wherever you want in America.  If you are exercising your parenting time, you can bring your children with you. Most Illinois parenting plans include long periods of individual parenting time for holidays and vacations.

The Supreme Court of the United States decides what is a constitutional right and interstate travel is a constitutional right.

The constitutional right of interstate travel is virtually unqualified. United States v. Guest, 383 U.S. 745, 757-758 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105-106 (1971).

The right to travel internationally, however, is not a constitutional right but rather a right that can be regulated by due process (a judge’s decision after a fair hearing).

“By contrast the `right’ of international travel has been considered to be no more than an aspect of the `liberty’ protected by the Due Process Clause of the Fifth Amendment. As such this `right,’ the Court has held, can be regulated within the bounds of due process.” (Citations omitted.) Califano v. Torres, 435 U.S. 1, 4 n. 6.

Hague Convention And Children Traveling

Travelling is normal.  Travelling overseas is normal. Travelling with your children is normal.  Therefore, travelling overseas with your children will be considered normal by an Illinois divorce or parentage court. 

The exception to this rule is if you have any kind of fear that your child will not return to their home after this travel. 

If a child does not return to their home, there is a treaty several countries, including the United States, have entered into to create a relatively uniform and fair process for determining in which country the children should be living.

Some countries, such as India, are not signatories to this treaty and thus provide no relief if an American child should be relocated there.

Other countries may be signatories to the Hague Convention Treaty but still have internal processes (or lack thereof) that make the return of an American child unlikely.

Each country’s policies as to the return of a child can be used as evidence to limit or allow foreign travel by a child. 

If a child has a passport, they can leave the United States whether they have both parents’ permission or not.  This makes the issue of who holds the child’s passport so important.  Blocking a child’s passport is often a matter of maintaining a parent’s relationship with the child…for the rest of that child’s life.  If you’re concerned about your child’s passport, contact my Chicago, Illinois family law firm to speak to an experienced Illinois family law attorney.