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How to Fight an International Removal Case
What are the common signs that may indicate that an international abduction may occur?
The chances of an international abduction may increase when a parent has:
What can I do if I suspect that my ex-spouse will leave the United States with our children?
New Jersey is a very multi-cultural state. People are intermarrying with foreign nationals from all over the globe. The divorce rate in New Jersey is about 50% to 60%. Unfortunately, when a marriage between a U.S. citizen and a foreign national ends, then international custody problems can basically ruin your life. I have heard many a sad story in my career as a family lawyer. After a divorce many people want a fresh start and are sick of New Jersey or of the United States. Therefore, the foreign national often has a yearning to go back to their homeland. The main problem is what do you do if the couple has children? Should the foreign national be legally permitted to take the children back with him or her to their homeland. The world is shrinking. I predict that within a generation, this type of legal issue will be as popular in the New Jersey family courts as college contributions motions or as standard interstate removal cases.
If a person is faced with this type of family situation then he should immediately undertake any and all efforts to block the child's passport. Additionally, if he has legitimate fears that a child might be taken abroad by the other parent without the mutual consent of both parents, then the child's name can be put in the U.S. passport name check system. Thereafter, if an application is received, then the requesting parent will be informed before issuance of the passport.
You should also call the Passport Services Office at 1-202-955-0232 for information on preventing your ex-spouse from leaving the country with the child. Passport Services will then advise you.
Send a written request that the child(ren) be placed on a name check system. Send child(ren)'s names, dates and places of birth, plus Social Security Numbers (if you have them), and any other pertinent information (like a physical description), along with your name, address, and a phone number where you can be reached, to Passport Services. Make sure you sign the request. You can fax the request letter to 1-202-955-0230.
You should always fax it because it will expedite the process. Once they receive your request, you will then be assigned an investigator. The investigator will then call you to provide the investigator with a copy of any divorce judgment or court orders that pertain to custody of the children.
After the investigator completes his report, he will then advise you whether he will block the passport by the name registration system. Thereafter, A few weeks later you will receive a letter with additional information from the State Department. This letter from the State Department.
My wife is a dual citizen of both the United States and of India…
If I am successful in blocking her United States passport, will I also be able prevent her from absconding with children if she uses her Indian passport?
Probably not. Please note that blocking a person's United States passport does not stop foreign nationals from obtaining passports from their own country. This process does not apply to foreign passports. A child who has or may have the citizenship of another country (which could happen if one parent has a foreign nationality) may be eligible to hold, or be included in, a foreign passport in addition to a U.S. passport. The concerned parent may contact the embassy of the other nationality for information and assistance.
What can I do to ensure that my ex-wife will not abscond with the children to her native country of Brazil?
Under the laws of the United States and many foreign countries, if there is no divorce judgment of custody prior to an abduction, then both parents may be considered to have equal legal custody of their child.
Even if both parents have custody of a child, it is still a crime in most states and under U.S. federal law for one parent to remove the child from the United States against the other parent's wishes. Nevertheless, a custody order/judgment can be helpful to prevent or help in recovery if your child is abducted. If you are contemplating divorce or separation, or are divorced or separated, or even if you were never legally married to the other parent, ask your attorney, as soon as possible, if you should obtain a decree of sole custody or a decree that prohibits the travel of your child without your permission or that of the court. If you have or would prefer to have a joint custody decree, you may want to make certain that it prohibits your child from traveling abroad without your permission or that of the court.
I believe that there are international removal issues in my divorce case. How should I draft my divorce judgment to protect parenting rights?
A well-written divorce judgment is an important part of defense against international parental child abduction. Where there are indicators of possible abduction, such as threats to abduct, then it is advisable to include a court-ordered supervised visitation and a statement prohibiting your child from traveling without your permission or that of the court. If the country to which your child might be taken is a member of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), your divorce judgment should include the terms of the Hague Convention that apply if there is an abduction or wrongful retention.
It may also be advisable to request that the court order that the non-citizen parent or the parent with ties to a foreign country to post a bond. This may be useful both as a deterrent to abduction and, if forfeited because of an abduction, as a source of revenue for you in your efforts to locate and recover your child. It is important for you to obtain several certified copies of your custody decree from the court that issued it. Moreover, you should give a copy to your child's school and advise school personnel to whom your child may be released.
I was just divorced from my wife and she has been threatening to move back to her homeland of Poland with our two boys…
Our two children do not yet have any passports. What can I do to ensure that my ex-wife will not obtain passports for our boys and leave the United States?
You may also ask that your child's name be entered into the State Department's Children's Passport Issuance Alert Program by contacting the Office of Children's Issues' Prevention Unit at 202-736-9156 or faxing a request to 202-736-9133. This will enable the Department to notify you or your attorney if an application for a U.S. passport for the child is received anywhere in the United States or at any U.S. embassy or consulate abroad. If you have a court order that either grants you sole custody, joint legal custody, or prohibits your child from traveling without your permission or the permission of the court, the Department may refuse to issue a new or renewal U.S. passport for your child. The Department may not, however, revoke a passport that has already been issued to the child. There is also no way to track the use of a passport once it has been issued, since there are no exit controls for people leaving the U.S. If your child already has a passport, you should take steps to ensure that it is kept from a potential abductor by asking the court or attorneys to hold it.
I have been divorced for two years. My ex-wife wants to plan a vacation to take our two young daughters to China to visit her family…
I don't trust her! What can I do to bar her from leaving the United States with our children?
If the children do not have passports then you can refuse to sign the passport applications for your daughters. As of February 1, 2008, the law requires the signature of both parents, or the child's legal guardians, prior to issuance of a U.S. passport to children under the age of 16.
Both parents, or the child's legal guardians, must execute the child's passport application and provide documentary evidence demonstrating that they are the parents or guardians; or the person executing the application must provide documentary evidence that such person has sole custody of the child; has the consent of the other parent to the issuance of the passport; or is acting in place of the parents and has the consent of both parents, of a parent with sole custody over the child, or of the child's legal guardian, to the issuance of the passport. Therefore, you can refuse to sign the passport application for your two daughters.
There are two exceptions for the requirement that both parents must sing a passport application for a child. The law does provide two exceptions to this requirement: (1) for exigent circumstances, such as those involving the health or welfare of he child, or (2) when the Secretary of State determines that issuance of a passport is warranted by special family circumstances.
What can I do to prevent my ex-wife from using the children's foreign passports to abscond from the United States?
Many United States citizen children who fall victim to international parental abduction possess, or may have a claim to dual nationality. While the Department of State will make every effort to avoid issuing a United States passport without the consent of both parents, the Department cannot prevent embassies and consulates of other countries in the United States from issuing their passports to children who are also their nationals.
You can, however, ask a foreign embassy or consulate not to issue a passport to your child. You should send the embassy or consulate a written request, along with certified complete copies of any court orders you have which address custody or the overseas travel of your child. In your letter, you should inform them that you are sending a copy of this request to the United States Department of State. If your child is only a United States citizen, you can request that no visa for that country be issued in his or her United States passport. Please keep in mind that no international law requires compliance with such requests, although some countries may comply voluntarily.
The United States government does not have exit controls at the border. There is no way to stop someone with valid travel documents from leaving the United States. The U.S. government does not check the names or the documents of travelers leaving the United States. Many foreign countries do not require a passport for entry. A birth certificate is sufficient to enter some foreign countries. If your child has a valid passport from any country, he or she may be able to travel outside the United States without your consent.
What is the Children's Passport Issuance Alert Program
The Children's Passport Issuance Alert Program (CPIAP) is a service for the parents and legal guardians of minor children. It enables the Department of State's Office of Children's Issues to notify a parent or court ordered legal guardian, when requested, before issuing a U.S. passport for his or her child. The parent, legal guardian, legal representatives, or the court of competent jurisdiction must submit a written request for entry of a child's name into the program to the Office of Children's Issues.
How can I enroll my child into the CPIAP program?
A person applying for a passport for a child under 16 must show that both parents consent to the issuance or that the applying parent has sole authority to obtain the passport. Passport applications made in the U.S. and at consular offices abroad will both be covered by the new law. Exceptions to this requirement may be made in special family circumstances or exigent circumstances necessitating the immediate travel of the child.
Once a passport is issued, its use is not tracked or controlled by the Department of State. There are no exit controls for American citizens leaving the United States. If you believe that your child may be abducted internationally, you should immediately contact the Office of Children's Issues and inform appropriate law enforcement officials.
Any information regarding the issuance of a passport to a minor is available to either parent, regardless of custody rights, as long as the requesting parents' rights have not been terminated. The Department of State's Children's Passport Issuance Alert Program is a program to alert us when an application for a United States passport is made. This is not a program for tracking the use of a passport. This program can be used to inform a parent or a court when an application for a United States passport is executed on behalf of a child. The alert program generally remains in effect until each child turns 18. It is very important that parents keep us informed in writing of any changes to contact information and legal representation.
New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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