DivorceFilter: child passports
January 1, 2018 8:02 PM Subscribe
It's unlikely that you're my lawyer. My spouse and I had very recently gotten our small child a passport for a planned international trip when we suddenly separated. We haven't divorced yet but probably will during 2018. We're both women, are still legally married, and she's the birth parent. We're in Washington state, and I haven't done a second parent adoption because it wasn't necessary here and our relationship was stable (please don't lecture me about this; I know). Who has the right to hold the kiddo's passport while we go through this process?
Birth parent.
posted by Mr. Yuck at 9:12 PM on January 1, 2018 [1 favorite]
posted by Mr. Yuck at 9:12 PM on January 1, 2018 [1 favorite]
Looks like Washington state confers parenting rights if this child is a child of the marriage. If this is a child of the marriage, you would also have the right to hold the passport.
From a practical standpoint, you should hold it. You can’t leave the country with the kid if you can’t prove parentage. This ensures the child stays put until the papers are sorted.
posted by crazycanuck at 9:19 PM on January 1, 2018 [1 favorite]
From a practical standpoint, you should hold it. You can’t leave the country with the kid if you can’t prove parentage. This ensures the child stays put until the papers are sorted.
posted by crazycanuck at 9:19 PM on January 1, 2018 [1 favorite]
IAAL, IANYL.
If your spouse doesn't oppose it, doing the adoption now is probably wise.
I'd speak to a lawyer practiced in these matters before taking the child out of the country.
posted by snuffleupagus at 9:58 PM on January 1, 2018 [4 favorites]
If your spouse doesn't oppose it, doing the adoption now is probably wise.
I'd speak to a lawyer practiced in these matters before taking the child out of the country.
posted by snuffleupagus at 9:58 PM on January 1, 2018 [4 favorites]
Response by poster: Thanks, all. To be clear, neither of us plans to take the child out of the country any time soon. I just want to be clear on who should have their hands on documents like this, and I'm not bringing a lawyer into this until I have to because of the cost. Unfortunately we haven't agreed that adoption can happen at this point, because our separation has been so sudden and contentious.
posted by centrifugal at 10:13 PM on January 1, 2018
posted by centrifugal at 10:13 PM on January 1, 2018
Is it realistic that the other parent would attempt to take the child to live permanently in a non-Hague convention country? Do they have the financial and logistical resources to do so (citizenship, finances, ability to find employment there?) If not, arguing about the passport really seems to be about something else - a power play, control, manipulation etc and you would be better off to disengage on this specific topic and focus on following legal advice. If it is a realistic possibility get legal advice immediately.
posted by saucysault at 10:13 PM on January 1, 2018 [7 favorites]
posted by saucysault at 10:13 PM on January 1, 2018 [7 favorites]
And to be even MORE realistic, I’m guessing that the birth mother is the only parent listed on the birth certificate? If so, then who holds the current passport is completely unimportant as the birth parent can easily apply for a replacement claiming that the original is lost. Yes, there are a few hoops to jump through, but....
posted by PorcineWithMe at 10:30 PM on January 1, 2018 [4 favorites]
posted by PorcineWithMe at 10:30 PM on January 1, 2018 [4 favorites]
You’ll want to look into temporary orders and a parenting plan. You are probably going to want a family law attorney to at least have met/consulted with so when you are ready for an attorney you have one picked out who you know can handle your case’s details. Who ever does hold the child’s documents, the other parent should probably have photocopies.
posted by HMSSM at 10:30 PM on January 1, 2018 [1 favorite]
posted by HMSSM at 10:30 PM on January 1, 2018 [1 favorite]
Response by poster: Ok, sorry to thread sit - kiddo was born while we were married and both of our names are on the birth certificate. We're sharing responsibility for her now in terms of both money and time. There's little chance either of us would leave the country any time soon for any reason. The question of who holds documents is a little bit about a power struggle/lack of trust but a lot about the fact that I'm in the process of moving out of our shared house, where I'm staying and the spouse is not at the moment, and trying to make a lot of fast decisions about what goes with whom.
posted by centrifugal at 10:43 PM on January 1, 2018
posted by centrifugal at 10:43 PM on January 1, 2018
In practice, the passport should go with the child, since it the child is sufficiently young, that's their only form of photo ID and most convenient form of Citizenship ID. So, which of you is likely to take the kid to a hospital, or a government office for some other official paperwork. On the outside, if either of you is taking a kid onto a Military base anytime soon, they can switch to checking all IDs without much more than a whim, so the passport would be needed.
You and your wife will have an informal custody agreement worked out by the two of you while get the legal wheels moving for a judicial custody agreement.
Also, if you don't trust your wife to keep the kiddo in the country, or she doesn't trust you to do the same, you can return the passport to its owner, the US State Department. There's a branch office in downtown Seattle which can answer all of your questions regarding disposal of a passport. Your small child will have to deal with getting another one later in life, as they start to look for a job (passport is the most convenient form of proof of citizenship), maybe travel with school or other opportunities, etc. Most likely none of those things will start until middle school or later, by which time the passport may expire anyway, if it still exists.
posted by Sunburnt at 10:48 PM on January 1, 2018 [3 favorites]
You and your wife will have an informal custody agreement worked out by the two of you while get the legal wheels moving for a judicial custody agreement.
Also, if you don't trust your wife to keep the kiddo in the country, or she doesn't trust you to do the same, you can return the passport to its owner, the US State Department. There's a branch office in downtown Seattle which can answer all of your questions regarding disposal of a passport. Your small child will have to deal with getting another one later in life, as they start to look for a job (passport is the most convenient form of proof of citizenship), maybe travel with school or other opportunities, etc. Most likely none of those things will start until middle school or later, by which time the passport may expire anyway, if it still exists.
posted by Sunburnt at 10:48 PM on January 1, 2018 [3 favorites]
Are you talking about a legal or moral right? IANAL (although legally trained) but it appears that USA passports always remain the property of the Government, which would imply that maybe nobody has a prima facie legal "right" of possession; just that the person on the passport has an ability to use it, under licence from the government.
If I were you, I'd lean towards holding onto it, because I would be you and therefore I would be looking out for my own interests. In that situation, possession is 9/10 of the law, as they say. You are reluctant to go to a lawyer yet because of the cost, and I would guess that your current/erstwhile wife is in a similar boat. So a simple solution is just to take it, also on the basis that it's easier to ask forgiveness than to ask permission.
But the other part of me wonders if this is a hill you want to die on? If it would cause extra friction needlessly, and if she's realistically not likely to do a runner out of the country, does it matter all that much?
Is there any option at present to just communicate either:
- "Hey, I'm leaving the passport with you because [reasons]; but on the basis that if & when I need it for a holiday I can grab it...would that be OK with you?" OR
- "Hey, I've decided to take the passport because [reasons] but just let me know if you need it and I'll get it to you"
For my part, I hold onto Lil Ubu's passport most of the time because we travel overseas annually, and his mother has an objective history of being rather, um, casual and inattentive about the location & security of important objects entrusted to her, so it saves me from the rigmarole of having to do all the paperwork & fork out $ every time it's needed and can't be found.
posted by UbuRoivas at 12:06 AM on January 2, 2018 [2 favorites]
If I were you, I'd lean towards holding onto it, because I would be you and therefore I would be looking out for my own interests. In that situation, possession is 9/10 of the law, as they say. You are reluctant to go to a lawyer yet because of the cost, and I would guess that your current/erstwhile wife is in a similar boat. So a simple solution is just to take it, also on the basis that it's easier to ask forgiveness than to ask permission.
But the other part of me wonders if this is a hill you want to die on? If it would cause extra friction needlessly, and if she's realistically not likely to do a runner out of the country, does it matter all that much?
Is there any option at present to just communicate either:
- "Hey, I'm leaving the passport with you because [reasons]; but on the basis that if & when I need it for a holiday I can grab it...would that be OK with you?" OR
- "Hey, I've decided to take the passport because [reasons] but just let me know if you need it and I'll get it to you"
For my part, I hold onto Lil Ubu's passport most of the time because we travel overseas annually, and his mother has an objective history of being rather, um, casual and inattentive about the location & security of important objects entrusted to her, so it saves me from the rigmarole of having to do all the paperwork & fork out $ every time it's needed and can't be found.
posted by UbuRoivas at 12:06 AM on January 2, 2018 [2 favorites]
(The below is based on words my family law attorney gave while I was adopting my better half's child from a previous marriage.)
Since both of you are listed on your child's birth certificate, you're both her parents* so both of you are jointly the custodians of her passport (as in, both of you have to consent to her getting a new one and you both have to consent** to her leaving the country). How that joint authority works during a separation and then after a divorce is up to your parenting plan. But I concur with my peers here, the passport physically stays with the kid absent any special circumstances that dictate otherwise.
* - Assuming I read your comment right. I'm questioning if I did because you said you haven't done the second parent adoption but I didn't think you needed to adopt your kid if you're listed on the birth certificate. I had to adopt my kid because, even though we'd lived together for all but a handful of days of his life, he was legally the child of my spouse and ex.
** - Though crazycanuck is right about both parents technically needing to consent to the child leaving the country—but not to add to your worries in this trying time—my experience is different. I traveled internationally with my then-not-legally-my-son several times without my spouse present and without a letter or anything else indicating she had consented. Of course, if the authorities had contacted her, she would have so maybe both my son and I "seemed at ease" but nobody ever asked from multiple airlines and countries. The closest we came is when we entered Canada on my passport, my marriage license, and his US birth certificate. The Canadian border agent simply asked my son if his mother knew where he was.
posted by fireoyster at 1:23 AM on January 2, 2018 [2 favorites]
Since both of you are listed on your child's birth certificate, you're both her parents* so both of you are jointly the custodians of her passport (as in, both of you have to consent to her getting a new one and you both have to consent** to her leaving the country). How that joint authority works during a separation and then after a divorce is up to your parenting plan. But I concur with my peers here, the passport physically stays with the kid absent any special circumstances that dictate otherwise.
* - Assuming I read your comment right. I'm questioning if I did because you said you haven't done the second parent adoption but I didn't think you needed to adopt your kid if you're listed on the birth certificate. I had to adopt my kid because, even though we'd lived together for all but a handful of days of his life, he was legally the child of my spouse and ex.
** - Though crazycanuck is right about both parents technically needing to consent to the child leaving the country—but not to add to your worries in this trying time—my experience is different. I traveled internationally with my then-not-legally-my-son several times without my spouse present and without a letter or anything else indicating she had consented. Of course, if the authorities had contacted her, she would have so maybe both my son and I "seemed at ease" but nobody ever asked from multiple airlines and countries. The closest we came is when we entered Canada on my passport, my marriage license, and his US birth certificate. The Canadian border agent simply asked my son if his mother knew where he was.
posted by fireoyster at 1:23 AM on January 2, 2018 [2 favorites]
I don't see why it matters since neither one of you has plans to take the kid out of the country.
It will matter when it's time to reapply for a new passport because both parents listed on the birth certificate have to be present, unless one parent has sole custody. I only know this when I had to renew my then-12 year old's passport and since his dad had been out of the picture for years, I needed to bring the court order as proof I had sole custody.
posted by yes I said yes I will Yes at 2:19 AM on January 2, 2018 [1 favorite]
It will matter when it's time to reapply for a new passport because both parents listed on the birth certificate have to be present, unless one parent has sole custody. I only know this when I had to renew my then-12 year old's passport and since his dad had been out of the picture for years, I needed to bring the court order as proof I had sole custody.
posted by yes I said yes I will Yes at 2:19 AM on January 2, 2018 [1 favorite]
Just hold on to it for now, and stop worrying and attaching potential contention to the possession factor. For me, in the "calm before the storm" period that seems to precede Tumultuous Relationship Events, I favor the "just let everything that can remain as-is, remain as-is" unless doing so is a true physical/financial/emotional danger to anyone. This is none of those things.
Just let the passport be a non-issue; otherwise it seems like you are making it one, needlessly. It does not seem like anything bad is going to come back on you by just holding on to it pending future decision-making. You can also say, if asked, that your action (or non-action) was based on a desire to ensure the passport was not lost or misplaced etc. Perhaps your parenting plan might call for a shared safe-deposit box, for such significant child-related items?
posted by I_Love_Bananas at 2:39 AM on January 2, 2018 [2 favorites]
Just let the passport be a non-issue; otherwise it seems like you are making it one, needlessly. It does not seem like anything bad is going to come back on you by just holding on to it pending future decision-making. You can also say, if asked, that your action (or non-action) was based on a desire to ensure the passport was not lost or misplaced etc. Perhaps your parenting plan might call for a shared safe-deposit box, for such significant child-related items?
posted by I_Love_Bananas at 2:39 AM on January 2, 2018 [2 favorites]
I’m sorry to say this but if the separation is currently contentious and there are disagreements about letting you adopt your own child you really really need a lawyer. Really really REALLY need a lawyer.
(In this situation I would hold onto the passport, unless the lawyer advised otherwise).
posted by lydhre at 3:02 AM on January 2, 2018 [19 favorites]
(In this situation I would hold onto the passport, unless the lawyer advised otherwise).
posted by lydhre at 3:02 AM on January 2, 2018 [19 favorites]
Since no one is using it now, a safety deposit box with both you and ex able to access could be another solution.
posted by rmless at 11:33 AM on January 2, 2018 [3 favorites]
posted by rmless at 11:33 AM on January 2, 2018 [3 favorites]
If your ex really cared about the passport, she would have taken it when she left the marital residence. It is in your hands now.
posted by crazycanuck at 9:28 PM on January 2, 2018
posted by crazycanuck at 9:28 PM on January 2, 2018
This thread is closed to new comments.
posted by cacao at 8:09 PM on January 1, 2018 [1 favorite]