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Mom Couldn’t Withhold Consent To Passport

Ex-Husband Taking Boy On Cruise Down Amazon

From – Missouri Lawyers Weekly

May 15, 2000

Even though a mother with primary physical and legal custody of her 14-year-old son objected to her ex-husband’s plan to take the boy on a cruise down the Amazon during his visitation period, she violated the father’s visitation rights by refusing to consent to issuance of a passport for the boy, a St. Louis City Circuit Court has ruled in a case of first impression.

The mother argued that the dangers of disease and terrorism presented by the trip justified her refusal to consent to the passport.

But the court disagreed.

“Father’s proposed cruise with son is within his rights of reasonable temporary custody…,” wrote Judge Robert H. Dierker Jr. “Mother’s refusal to Cooperate with the issuance of a passport is an exercise of legal custody in such a way as to significantly and detrimentally impact Father’s temporary custody rights.”  The case is Fondell v. Telmer, MLW No.26409, handed down on May 5.

Well-Planned

“My client did a good job of explaining to the court that the trip was safe and well-planned,” said Christopher Karlen of St. Louis, who represented the father. “He wasn’t someone who decided at the Ilth hour to take a trip to the Amazon.”

Leigh Joy Carson, counsel for the mother, said, “I read this opinion as saying there is nothing you can put in a settlement agreement to prevent a child from being able to take an overseas trip.  So I think attorneys give a false sense of security to clients if they tell them that a flag can be put on a child’s passport so that the child will not be permitted to leave the country,” Carson said.

‘Exotic’ Trips

Kathryn Fondell and Eric Telmer were the divorced parents of a 14-year-old boy. She had primary physical and legal custody, and the father had temporary visitation rights.

The father often took the boy on “exotic” trips inside the United States during the times he had temporary custody, and the mother never objected to these trips.

However, when he announced that he wanted to take the boy on a cruise down the Amazon River, the mother demurred. She said the risks of disease and terrorism were too great.

Several years previously, the mother had written the U.S. State Department, requesting that no passport be issued to her son without her consent. The State Department honors such requests from parents of children under 18. With her request on file, the boy could not get a passport the Amazon trip unless his mother consented, which she refused to do for.

The father moved for an order to enforce the dissolution decree, which entitled him to specified rights of visitation and temporary custody. However, the decree was silent on passports and overseas travel.

The mother argued that the circuit court lacked jurisdiction over the father’s motion because issuance of passports is a matter of federal law. Further, she said that as legal custodian, she had absolute discretion to withhold consent to issuance of the passport.

Federal Law

Judge Dierker said, “The Court agrees that issuance of passports is a matter of federal law, and nothing this Court can do could compel the State Department to do anything.

“However, Father does not seek an adjudication of son’s right to a passport, or otherwise seek relief against the State Department,” Dierker said. “Father seeks relief against Mother, who is unquestionably within the jurisdiction of this Court and whose conduct must conform to this Court’s decrees.

“Mother point to nothing in federal law that preempts this Court’s authority to enter orders requiring Mother to take action with regard to passports or similar matters.  Indeed, state courts routinely make orders affecting parties’ actions with regard to federal tax refunds and the like.”

Dierker then turned to the mother’s argument that she has absolute discretion to withhold consent to issuance of the passport.

“[T]he Court’s research has not disclosed any Missouri case or stature expounding on this issue,” he said.  “Certainly mother could not withhold consent to medical treatment needed by son while son is in temporary custody of Father.  On the other hand, temporary custody does not import the same right to supervise the child as legal custody.”

According to Dierker, the “touchstone for resolution of this dispute, oddly enough, is the language of the stature: ‘The legal custodian shall not exercise legal custody in such a way as to significantly impact the other parent’s visitation or custody rights.’ § 452.405.0, RSMo 1994 & Supp.

“But for the overseas travel aspect of this dispute, Father’s ability to take his son on a cruise, during his prescribed period of temporary custody, would be as absolute as Mother’s ability to do so at any other time.  Nothing in the dissolution decree limits Father’s discretion to travel with his son, so long as he observes the time limits in the decree.”

Dierker said that he “shares Mother’s concerns about the projected Amazon cruise, but the Court’s attitude about traveling to foreign countries whose primary language is not English is a mere personal predilection.  On this record, there is no evidence that the projected Amazon cruise presents a clear and present danger to the life or health of the parties’ son.”

In fact, he said, the entire record supported the father’s position,  “Father gave advance notice of his plan to Mother, together with considerable information concerning the logistics of the proposed trip.  Father determined what immunizations are recommended or required, and is ready, willing and able to ensure that son receives them.

“Mother’s instruction to the State Department concerning the passport was written in 1994, apparently as a general precaution, and without any concrete evidence that parental kidnapping was a possibility.

Won’t Go Native

“Certainly there is no evidence to support a reasonable belief that Father intends to take son to Peru or Brazil and ‘go native,’” Dierker said.

In summary, Dierker said that “Father’s proposed cruise with son is within his rights of reasonably temporary custody as specified by the dissolution decree, as modified.

“The Court finds that Mother’s refusal to cooperate with the issuance of a passport is an exercise of legal custody in such a way as to significantly and detrimentally impact Father’s temporary custody rights.”

But Dierker said that the mother could not be found in contempt, because the decree did not address this specific situation.  “However, Mother can be enjoined and restrained, under this Court’s inherent authority to enforce its decrees, from interfering with Father’s temporary custody.”

Accordingly, Dierker ordered that the mother be “permanently restrained and enjoined from refusing to execute a sworn consent to the issuance of a passport” for her son.