|
|
|
NEW!
| Mom Couldn't Withhold Consent To PassportEx-Husband Taking Boy On Cruise Down AmazonFrom - Missouri Lawyers WeeklyMay 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 LawJudge
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. |
|
The Carson Law Firm: Family Law Attorneys -- Serving St. Louis Families for Over a Decade
Divorce | Mediation | Modification | Child Custody | Maintenance | Child Support | Relocation | Non-Biological Relatives' Rights | Adoption | Name Change | Legal Guardianship | Appeals | Health Care Directive | Need to Know | Tools | Single Parents' Resources | For Attorneys | Staff | News & Community | Newsletter | Directions | Contact Us
Send mail to familylawinfo@thecarsonlawfirm.com with
questions or comments about this web site.
|
