When a single or divorced father, or a father in a divorce proceeding, wants to take his child out of the U.S., his right to do so depends on his custodial status, agreements in place with the child's mother and the laws of his state. If a noncustodial parent takes his child out of the country without the other parent's permission, whether for a trip or a permanent move, this may be considered abduction.
During a Divorce
During a divorce proceeding, most states won't allow a parent to relocate to another country with a child unless the other parent agrees. According to lawyers at Dadsdivorce.com, when one spouse files for a divorce, certain restrictions go into effect that theoretically prevent either parent from moving out of the court's jurisdiction with a child until custody determinations have been made.
The custody agreement determines each parent's rights regarding their children's residence. The parents can work out custody and visitation agreements during the divorce process and, if they cannot agree, a judge will make a determination. If one parent wants to take his children out of the country, the court would consider whether the move is in the best interest of the children. Additionally, restrictions on moving can be included in custody agreements. Generally, the court doesn't prohibit a parent from moving, but can restrict how far away the custodial parent can move, with the child, from the noncustodial parent. Custody agreements and state laws also govern the circumstances under which a noncustodial parent, whether father or mother, can travel or take their child out of the country.
Another factor in either parent's right to take their child out of the country is the location to which the parent wants to move. The Hague Convention is an international treaty which, in part, establishes rules for the return of children abducted to a foreign country by one parent. Eighty-two countries have adopted the Convention, and have agreed to help return abducted children to their habitual residence within 6 weeks. If a noncustodial parent takes his child to a Hague Convention country without the other parent's permission, the custodial parent can petition for the child's return, according to Convention rules.
Obtaining Passports and Visas
The U.S. Department of State requires both parents or guardians of a child to appear in person with the child to apply for a passport or visa. The parents or guardians must also bring copies of each parent's photo ID. Both parents, if sharing legal custody, must consent to the child applying for a passport. If there are applicable court orders establishing sole custody, the U.S. State Department requires those as well.
Travel Without Permission
Sometimes situations arise wherein a parent takes his child out of the country for a vacation and then decides not to return. The rights of either parent in these cases are determined under the terms of the custody agreement, the laws of the state where the child resided and sometimes the laws of the foreign country. Dadsdivorce.com recommends, in this case, that the custodial parent contact a lawyer as soon as possible. The longer a child is out of the country the more difficult it can be to facilitate his return.