The case of LO v. NO, No. CAAP-19-0000762, gives me the opportunity to provide some reminders to everyone about child abduction prevention.
The actual underlying issue in this case was the Father’s appeal of the trial court’s post-decree order granting the Mother’s request for a U.S. passport for the parties’ minor child. The appellate court ultimately affirmed the trial court’s order because the Father’s brief did not quote any of the family court’s findings of fact, nor did the Father append any findings of fact to the brief, which is required by the Hawai’i Rules of Appellate Procedure. Because of this, the Father was bound by the findings of fact made by the trial court, and the family court did not abuse its discretion in ordering the Father to cooperate in securing a passport for the minor child, something he argued he did not want to do out of concern the Mother would take the child to Vietnam.
- The Court pointed out that a minor child possessing a passport does not require a parent to agree to that child traveling at any point in the future. In this particular case, the trial court had put in place a ne exeat order, where the minor child could not travel without both parents’ consent or a court order. If there were no ne exeat, then presumably either parent could travel anywhere with the child during that parent’s custodial time. As a reminder, double check the language of any ne exeat so that it can be clearly read and interpreted by a lay person or law enforcement.
- If there is a ne exeat in place, that is generally good protection against the minor child exiting the United States. The U.S., of course, has no exit controls, and so securing a court order with a ne exeat is crucial. Once you have a court order, it can be submitted to the U.S. Department of State for enrollment in the Prevent Departure Program. As for entering a foreign country, typically a valid passport would need to be presented to immigration officials when entering the foreign country, although for minors under age 16, they only need proof of U.S. citizenship (such as a birth certificate) to enter Canada.
- A court would typically determine whether the child should have a passport by examining the child’s best interests, just like any custody decision. Be certain to argue the case accordingly.
- It is important how the court crafts its order. In this case, the Court ordered that the Father shall cooperate with the passport application process and that the application must be submitted within 90 days. Here, there is no upcoming travel scheduled, so if the Father did not abide by his obligation, presumably there would be some time to enforce the terms of the court’s order. Alternatively, the court could give one parent the sole authority to obtain a passport on behalf of a minor child (when the parents otherwise have joint legal custody). In this case, the first of these options appeared to be the best, particularly given that the court ordered that the Mother pay the costs of the application and the Father hold the child’s passport. As a side note, the Father can enroll the child in the passport issuance alert program with the U.S. Department of State. This would alert him if someone were to apply for a new U.S. passport on behalf of the minor child.
- The appellate opinion did not address whether the Mother had the authority to secure a foreign passport for the child at some point in the future, without the Father’s knowledge or consent. This is typically something a trial court would want to consider, as well.