Can a Spouse With Full Custody Leave the Country?

By Cindy Chung

Father looking at daughter (5-7) sleeping on aeroplane

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A parent with full custody has the authority to make many decisions on behalf of a child. However, a custodial parent's decision to relocate often depends on state custody laws. Federal and international laws may also apply. If a custodial parent relocates with the child to another country against the wishes of the other parent, it could constitute a violation of state, federal or international laws.

Child Custody Rights

State custody laws determine the custody and visitation arrangements available to divorcing spouses. A parent with full custody rights might have legal custody, which allows the parent to make all of the major decisions in the child's life, and physical custody, which establishes the child's residence in that parent's home. However, a parent can have full legal custody but shared physical custody, or vice versa. In addition, the non-custodial parent will likely have court-ordered visitation rights. Both parents should review the custody conditions stated in the court order to determine whether any limits are imposed on relocation or travel. For example, a custody order might require the other parent's permission for international travel or relocation.

Child Relocation Laws

Many states have child relocation laws governing whether a custodial parent can move to another state with the child. Some states require that the non-custodial parent be given notice before a move greater than a certain distance. If the other parent consents to the move, litigation can be avoided; if the parent objects, both parents may need to participate in a relocation case heard by a state family court or domestic relations court. When a parent seeks to relocate against the other parent's wishes, the court will only approve a move that represents the child's best interests. A custodial parent desiring to leave the country may be required to give a reason for the move, explain why the move benefits the child and provide a plan for maintaining the child's relationship with the other parent.

International Child Kidnapping Laws

If a custodial parent desires to relocate outside the United States despite the other parent's wishes, such a move could constitute parental kidnapping, which violates state, federal and international law. If a court order exists regarding custody, the dissenting parent may be able to use the custody order to compel enforcement of parental kidnapping laws. If a parent relocates to a country that has signed the Hague Convention on the Civil Aspects of International Child Abduction, the United States, as a signatory to the convention, may be able to help bring about the child's return to the United States.

Issuance of Child's Passport

The U.S. Department of State has established procedures for passport issuance intended to prevent parental child kidnapping across international borders. Generally, both parents must sign the passport application for a child under the age of 16. However, if one spouse has a court order establishing sole custody, passport issuance may not require the other parent's signature. A parent with full custody rights should consult with a family law attorney to discuss the specific rights and requirements of the court’s custody order.