Although, it rarely happens, there are instances where an ex-spouse will improperly and without your permission, take your child out of the country. Here is what you can do.
In order to leave the United States, each United States citizen will need a passport. For children under 18 years of age, there are special laws about obtaining a passport. If the child is under the age of 16 years of age, then both parents must agree to obtain the passport. For children who are 16 years and older (and under 18 years of age), then only one parent is needed to obtain the passport.
Once a child has a passport, then either parent who has access to that passport, will be able to use it to take the child out of the United States.
If you believe that your ex-spouse is going to take your child out of the United States, but, the child is still in the United States, then you need to protect your rights to prevent this from happening. You need to immediately get an Order from the Court preventing your ex-spouse from taking the child out of the United States, and also to obtain the child’s passport. The Court’s order should be very clear that the child’s passport should be returned to you and that the child cannot be removed from the country without your written consent.
If the child has already been taken out of the country, then you still need to go to Court to get your child back into the United States. In that case, the Court will look at the following factors to determine if the child should be returned to the United States:
- Habitual Residence: The Court will look to see what was the child’s “Habitual Residence”. The Court will look to see: the child’s actual residence, length of time spent at that residence, and whether the child is engaged in school or other activities that would suggest this residence was the child’s permanent residence at the time of removal.
- Was the Removal a Breach of Your Custody Rights: Was the removal of the child a breach of your custody rights. Essentially, the court will review the custody agreement and any prior court orders.
- Did you give implicit approval to the child being removed. The Court will determine if you gave implicit approval of the child being removed. This could be by some acts that you did or by not actually objecting to the removal.
If your child has been removed from the country, or you suspect that the other parent may attempt to remove the child, you need to contact David Badanes and the Badanes Law Office, P.C. to know your rights.
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