Living in Texas, we have an especially acute sense of what it means to live in a border state. Not only that, but Houston is one of the most diverse cities in the country with many of our neighbors having been born and lived in other nations besides the United States. Additionally, with many people being employed by companies who operate outside of the United States there are ample opportunities to develop relationships in start lives with people who were not Americans by birth. This may reflect the reality of your life where you or your spouse have relatives and ties to other countries besides the United States.
On the whole, this should be seen as something positive. Being able to have an international perspective on events and issues can broaden near horizons in allow you to consider alternate viewpoints more readily. If diversity has any benefit at all, it is in knowing that you and the people around you have different viewpoints and opinions and there is oftentimes something to be learned from sharing and expressing those different opinions. It may have been that there was some quality of your spouse that you identified within particular because he or she has lived internationally.
However, this subject of international travel takes on added meaning when you have a child. What are the main concerns that parents have in a divorce scenario is the inability to spend time with their children when they see fit. For the most part, when you reside with your spouse and your child you can spend time with them frequently. However, when you and your spouse choose to get a divorce than live separately from one another then your child’s time will be spent divided between both of your homes. In and of itself this can be a stressful departure from normal for families like yours Anne can take some getting used to when it comes to adjusting to two post-divorce life.
However, this subject can become even more contentious when you consider that international child abduction is they potential hot-button issue for your divorce. Suffice it to say that you would be more likely to express concern over your ex-spouse being able to travel internationally with your child if you suspect that he or she has a desire to keep your child with them in a different country. Unfortunately, this is the reality for some parents who are going through a divorce currently. What sort of issues would confront you and your family if this were the case? What could be done and what is reasonable in terms of protection for your child in the face of international child abduction?
Fortunately, the attorneys and staff at the Law Office of Bryan Fagan are proud to represent many persons who have both international ties and experience in traveling back and forth between the United States and their native country. We take a great deal of pride in having a diverse and international group of clients. Not only are we able to help and serve people from all over the world but we are also able to learn a great deal and to pass that knowledge on to future clients who may be facing similar issues. What we learned from a difficult case can be passed on to benefit families like yours.
With that being said, I would like to walk you through a hypothetical scenario that mirrors an actual case that myself and another attorney with our office will recently work on for a client of ours. This was a highly and debated subject within the context of a divorce that was ongoing. Namely: what efforts, if any, should the court use to restrict international travel for a young boy? When mom and dad can’t agree on what steps to take for this subject what can be done to protect a child but ensure the essential freedoms of both parents to travel with their child?
What is the type of scenario that I am envisioning for international travel concerns?
Let’s suppose that you are a naturalized American citizen who is of Indian origin. You move to the United States from India after college to attend Graduate School. While in Graduate School you met a woman and began a dating relationship with her. Eventually, as these things happen, you got married to her and had a child. Your son is now 7 years old and in the 1st grade. You have a steady job connected to the United States. Outside of phone calls and emails to your home country you have little to no ties to India at this point.
Other than, the fact that you want to be able to travel to India with your son to help expose him to your native culture. To facilitate these desires you have obtained what is called an overseas citizen of India card. These cards will allow for ease of entry and exit from India while traveling. Even though you have never traveled to India with your son yet you certainly would like to. You have raised your child in an Indian household they would like to be able to show him his extended family and elements of your childhood back in India.
Unfortunately, your wife has recently filed for divorce against you. She is an American with no ties to India. However, she has it’s always supported you’re exposing your son to Indian heritage and culture. During your marriage, she has also taken steps to promote the culture and heritage of India and has gone out of our way to help your son grow in his knowledge and appreciation of India. She supported you when you applied for and obtained this overseas citizen of India cards.
However, now that your divorce is underway her tune is starting to be a little less sweet to the ears. For instance, she has filed a motion with the court requesting that the judge impose significant in severe restrictions on you in regards to your ability to travel abroad with your son. Of course, this motion in request has focused on India. Her basis for the focus on India is that India is a country that has not signed on to the Hague Convention treaty regarding respect for the child custody orders of another country. If an Indian will not respect child custody orders from the United States and will not fully cooperate in attempts to return a child to the United States, your spouse argues, you should not be able to travel internationally with your son until he reaches the age of 16.
Another element to her request of the court is that she would like to be the person who always holds, in a physical sense, the overseas citizen of India card as well as your son’s passport. This would essentially give her the final say to whether or not your son will be able to travel internationally anywhere. If you came into the Law Office of Bryan Fagan with questions about a scenario like this here are some of the thoughts that I believe we would be sharing with you regarding the circumstances I just completed laying out for you.
What factors and relevant law will a court consider when deciding whether or not to restrict international travel for divorced parents?
The Texas family code contains statutes that detail the circumstances under which a trial court may consider implementing restrictions on travel about your minor child. For those interested, sections 153. 501, 153. 502 and 153. 503 are those sections. These laws detail that credible evidence must be presented to a family court indicating a potential risk of the international abduction of your child by your spouse. Once this credible evidence has been presented it is up to the court to determine whether or not it is necessary to take one or more measures to protect your son from the risk of abduction by you.
Next, the family called further states that a family court should consider the risk of international abduction of your child based on their valuations of certain risk factors. Specifically, there are six risk factors that a court must consider regarding international child abduction. First, the court would consider whether or not you have taken or concealed your child in violation of your spouse’s right to possession or access to your child. Second, the court would consider whether you have previously threatened to take your child in violation of your spouse’s right to possession. 3rd, your willingness to leave the United States for financial reasons would also be considered. Namely, whether or not you have significant economic ties to this country will be considered. This is further evidenced by the 4th factor that is intended to display a risk of your ability to abduct her child.
The family court would need to seriously consider whether or not you have quit a job, sold your home, closed bank accounts, or liquidated other assets as potential proof of an intent to remove your child from the United States against the will of your spouse. Otherwise, a history of domestic violence or a criminal history involved in the violation of court orders are the 5th and 6th factors respectively that a court would consider when determining whether or not a restriction of your ability to travel internationally with your child was justified.
These are the factors that a court would look to when determining whether or not there are facts and circumstances in place for your case that would justify the imposition of international travel restrictions. If you had significant economic ties cited states, had never previously attempted to withdraw your child from school or remove him from the country, and have no criminal history involving domestic violence then it would seem to me that the factors listed in the Texas family code would not be met international travel restrictions would not be justified.
What are relevant circumstances that a court could look to when determining whether international travel restrictions are appropriate?
I think it will be helpful in a situation like yours to be able to mention the extensive ties that you have to the United States. For instance, if you are an American citizen that alone is a strong tie for you and your child to the United States. If you have never expressed an interest or desire to leave the country with or without your son that would also be a point in your favor it would seem. Simply wanting to be able to travel internationally with your child is not evidence of a desire to abduct your child internationally.
From my experience, it is not uncommon for parents going through a divorce to attempt to restrict international travel for their child when the child is at a very young age. This is true no matter what the experience of the family is regarding issues related to international child abduction. Certainly, if you were to have expressed a desire to live in India with your son on previous occasions that may provide your spouse with some degree of evidence to show that you are a risk of international child abduction.
On the other hand, applying for a passport for your child or obtaining an overseas citizen of India card does not, in and of itself in my opinion provide sufficient evidence that travel restrictions are necessary. as an American citizen, you can travel to India or any other country so long as that travel is not barred by the United States or the country to which you wish to travel. I believe a court would have a hard time restricting your ability to travel internationally absent strong and direct evidence to the contrary.
As far as which parent would have the right to maintain possession of your child’s passport, this is a frequent issue that comes up in almost every divorce even ones where international travel is not necessarily as relevant as this hypothetical scenario. From my experience, it is the parent who has the exclusive right to determine the primary residence of the child who usually can also hang onto your child’s passport when he or she is not traveling. This makes sense given that this is also the parent who is likely obligated to keep track of your child’s vital records like their birth certificate and Social Security card.
However, just because your spouse may be the person who can maintain possession of your child’s international travel documents does not mean that he or she should be able to play an inordinate role in terms of where your child can travel internationally. Certainly right now travel to India may be more dangerous to your child’s health due to the coronavirus pandemic. However, these are temporary circumstances that are in play and certainly do not reflect a permanent sea change in terms of where you and your child can travel together.
In normal times, that may be a good idea during mediation to work to negotiate terms regarding maintaining a passport for your child and disclosing how travel planning internationally or domestically will occur. For example, I am familiar with families who require advanced notice of any trips or vacations especially those that are international. Advance notice in these contexts could mean filing with your spouse details of the trip including flight information, accommodation information abroad, and phone numbers where your child can be reached.
A general itinerary of the trip would seem to be reasonable as far as where your child will be each day of the trip in what part of the country your child will be in. This isn’t so much to keep you updated on where your child is every moment of their trip but it is important if something happens and you or your spouse need to contact an embassy or consulate in India to provide them with information regarding your son. It does happen sometimes that international incidents occur and The United States embassy in India or another country will need to be able to gain access to search for and protect your child in the event of a risk of harm. Were you not to receive basic itinerary information about your son’s visits then you would not be able to do the same if he were to travel with your spouse abroad.
Whatever your specific circumstances look like, I think you can tell by this point that these are serious matters and should not be taken lightly. Even if you are not concerned with international child abduction making sure that you have positioned yourself within the divorce to be able to keep your child safe when traveling internationally is important. Also, it is important to have your child be in a position to travel internationally if that is your wish or that of your spouse period to ensure that these things can occur I would certainly recommend hiring an experienced family law attorney to represent you during a divorce.
Questions about the material contained in today’s blog posts? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.