Who Keeps the Kids’ Passports after Divorce?

There’s almost nothing scarier for a parent than the thought of someone taking their child and going to another country.

In divorce that “someone” you fear may be your soon-to-be ex.

These fears almost always crop up when one parent is a U.S. citizen and the other parent is a foreign national.

When someone is a foreign national, they usually don’t have much family or many ties to the U.S. besides their spouse they’re now divorcing. Couple that with a ready ability to get on a plane with your child, and, voilà, there’s fear.

Now, let’s be clear: parents taking children back to their country of origin is not a big problem. In fact, it’s exceedingly rare.

But, a problem being rare doesn’t help assuage fear when that rarity may happen to you and your family.

The Passport

Perhaps the easiest way to deal with the fear of a child being taken out of the country is to control your child’s passport.

Without the passport, your child won’t be getting on a plane, and it’s very unlikely your ex would be able to make any border crossing (e.g., a land crossing in to Canada) at all.

One way to handle things is to make sure your kid does not have a passport. That way there’s never any question about the ability to cross the border.

(Hint: usually both parents have to agree in order for a child to get a passport. So, keeping that from happening is usually as easy as declining to provide consent.)

The problem with this is you can’t travel internationally with your child either. If you’re okay with that, then this is likely the ideal solution for you.

But, what if your child already has a passport?

If your child already has a passport, there are usually a few ways to handle the situation:

  1. The passport goes back and forth between the parents as needed.

This system works well when exes get along and there’s no real fear of taking the child and not returning to the U.S.

Honestly, this is how it works in 99% of divorce cases.

  1. One parent keeps the passport and only releases it when necessary.

When some caution is needed, one parent will keep the passport and release it to the other parent when necessary. Usually, release will happen after the traveling parent has communicated with the non-traveling parent and shared the itinerary.

  1. One parent keeps the passport and never releases it.

When there is legitimate fear of a parent taking a child and not coming back to the U.S., then one parent may keep the passport and never release it to the other parent.

Most often, this happens when (1) a parent has threatened to take the child back to their country of origin and not return, and (2) when the foreign parent comes from what we call a non-Hague-Convention country.

(Note: The Hague-Convention countries are those that take part in The Hague Convention on the Civil Aspects of International Child Abduction. This Convention sets rules for getting kids back if they’ve been abducted by a parent. If a country is not a part of the Hague Convention, the process for getting a child back is, well, who knows?)

Bottom Line

The bottom line is this: the vast majority of the time, parents work together regarding international travel, and both parents exchange the kids’ passports as needed.

When there are serious, legitimate concerns about a parent abducting a child and not returning to the U.S., then one parent may hold the passport.

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If you find yourself facing a divorce, please call 801.685.9999 for a legal in-person consultation, or use our online scheduling tool.

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