Updated April 16, 2020: A parent expressed concerns yesterday about issuance of a passport for a child. The parent's fear was that the other parent, having no right of custody, might be able to obtain a passport for the child and to remove the child from the country. Certainly, the Hague Convention, can be of assistance in recovering children who are wrongfully removed. However, this is an expensive, time-consuming, and not always successful process. This is particularly true if a child is taken to a country that is not a Hague Convention signatory or to a country that is a treaty partner but which is non-compliant.
As a practical matter, Homeland Security is now requiring that any child have his/her own passport -- even for travel to Canada or Mexico. In a high conflict case involving one or more foreign-born parents, where there is a potential flight risk, there are certain protective measures that will help to prevent a parental abduction.
One situation that is encountered more frequently recently, since many parents are not married to each other, is that one of the parents may remove the child from the country (if this is an international abduction) or out of the state. In Michigan--a very large state--one abduction with which I am familiar involved a father removing a toddler from the Upper Peninsula to an area in upper Michigan (in "the mitten." The distance between the mother's home and his home was about 350 miles. This means the abduction might as well have been to another state given the travel time. It's been my experience that usually, the "taking parent" is the mother, but this is not always true. I've handled international and interstate abductions where the father was the "taking parent."
When the parents are not married to each other, but they have executed an Acknowledgment of Parentage, that document, consistent with The Acknowledgment of Parentage Act of 1996 is clear about which parent has the right to custody of the child:
Paternity | Unwed parents:
The number of births born out of wedlock has varied through various periods in the history of the US--and other countries as well. The information from the Centers for Disease Control was updated very recently (Match 5, 2020). An astonishing number of children are born to unmarried parents. In fact, in many states the percentage of births to unmarried mothers exceeds 50%.
You can click here to access the CDC report and the underlying data, state by state.
In fact, only a few years earlier, The Atlantic published an article in which statistics showed that about 57% of Millenials were having children outside of marriage. Campbell, A. F. (2016, July 18). Why Are So Many Millennials Having Children Out of Wedlock? The Atlantic.
What is the consequence for the parents of these children? In most States, if the mother does not put the father's name on the birth certificate, only the mother has custody of the child. Only the mother can determine where the minor child will live. If the father takes no steps to obtain a court determination of his paternity, then he is "a legal stranger" to the child. If he takes the child, the mother can get help from the family courts in the area where she lives to recover the child.
However, since the Welfare Reform Act of 1996, hospitals have been tasked with helping States establish paternity. Efforts are made in hospitals to encourage the parents to execute an Acknowledgment of Parentage (aka "An Affidavit of Paternity"). Even then, the father has no lawful right to custody unless he goes to a court in the county and state where the mother and child are residing ("found") to file a child custody and parenting time order. If the father has a court order for custody, then he has "a right of custody" that will entitle him to seek recovery of those rights if the mother removes the child to another State or Country. In Michigan, even if the parents execute an Acknowledgment of Parentage, will the father have any legal rights. But the mother still has the absolute right to determine where the child will live until the Father obtains a court Order formalizing his rights:
Acknowledgment of Parentage Act of 1996 (Excerpt)
MCL 722.1006 Grant of initial custody.
Sec. 6.
After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.
History: 1996, Act 305, Eff. June 1, 1997 ;-- Am. 2006, Act 105, Imd. Eff. Apr. 7, 2006
The purpose of this Act is to ensure stability for an infant, toddler, or older child. The Father can always seek a custody order by filing a motion for custody and/or for parenting time. Often law enforcement officers will say to the left-behind parent: "I cannot help you. This is a civil matter." [The officer means that the left-behind parent must get a court order for return of the child.] However, where the parents are unmarried and have executed and Acknowledgment of Parentage form--the form that sets out Michigan law (that the mother has initial custody without prejudice to the father that would affect the rights of either parent in a proceeding to seek a court order for custody or parenting time), then a law enforcement officer must assist the left-behind parent. To make this clear, the Attorney General at the time the above statute was enacted, wrote a legal opinion that makes it clear that the officer must assist in recovery. That AG Opinion #7191 can be located and downloaded here.
Preventing International Abductions:
First, if the parents' children do not already have a passport, there are several protections for unmarried parents.
(1) Two Parent Applications: The State Department will not issue a passport for a child under the age of fourteen if both parties share joint legal custody absent the written authorization of the second parent. Both parents are required to apply in person for a child's passport. There is, however, a procedure by which a parent may obtain a passport for a child without the other parent being present. This requires express written authorization in a notarized document and also a copy of the driver's license of that other parent. For more information about children's passports, see the Department of State website.
(2) State Department Children's Passport Issuance Alert Program. If the children already have a passport, to prevent flight, this program under the auspices of the State Department, will "flag" a passport application upon notification by a parent. There is additional information here.
(3) Resources to help parents prevent abduction or to deal effectively with abduction. The U.S. State Department has the answers to Frequently Asked Questions regarding the potential for parental abduction. See, in particular, Prevention Tips on this webpage.
(A) A parent may enroll a child in the Children's Passport Issuance Alert Program so that he or she will be alerted if the other parent applies for a passport.
(B) Two Parent Signatures Required: The United States Department of State requires that both parents must sign an application for a passport for children under the age of 16. Read more about passports and access forms on this webpage.
(C) Travel Alerts: The State Department regularly reviews safety issues related to travel in foreign countries. The information comes from a variety of reliable sources. Countries are rated from Level One to Level Five. Level One means that there is no danger reported by any source regarding the safety of Americans traveling to a country. On the date of this update to this blog post (April 16, 2020), The State Department has issued a Level Four Warning --a Health Advisory--to U.S. Citizens for travel around the globe due to the Covid-19 pandemic.
Other travel advisories can be found here:
(4) Link to Other posts on this Blog dealing with parental abduction can be found here.
If your child is missing, please contact me to see if I can assist you or your attorney in recovery. I've consulted in many interstate parental kidnappings -- in the past 12 months alone -- and can walk your attorney through the process even if Michigan is not one of the states involved. You can email me [email protected] or call me at 231-649-2140.
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