Can a lower court restrict your use of your passport in a North Carolina child custody order? In a recent North Carolina case, the defendant appealed from the court’s denial of his motion for reconsideration and relief from a 2015 child custody and support order. The defendant was a Poland-born American citizen. He and his wife had one minor child. They separated in 2013 and were divorced in a 2014 judgment.
The plaintiff filed a complaint asking for custody of their child, child support, alimony, post-separation support, equitable distribution and attorneys’ fees. After a hearing, the lower court awarded primary physical custody to the mother, with the parents getting joint legal custody. The lower court also established a visitation order and child support obligations. The lower court included a provision stating that the father couldn’t seek or be allowed to have a passport for the couple’s minor child.
The order gave the mother sole authority and decision-making with regard to any passport applications and in case a passport was issued to or for a child, the mother would have exclusive authority not only over the passport but any foreign travel. The father was not allowed to take the minor child out of the continental United States, except where the court provided written authority to do so. His passport had to be surrendered to the clerk and he had to apply to the court if he needed to travel with his passport.
The defendant didn’t appeal the custody order, but instead his attorney filed a motion to reconsider the part of the order that granted joint legal custody to him and the mother. Almost a year later, he filed an amended motion for reconsideration of the custody order. He argued that the mother hadn’t asked for anything related to his passports and that his own attorney asked for the provision about his own passport without his knowledge or consent. He also argued that the court’s requirement that he surrender his passports was a mistake based on lack of jurisdiction under N.C. Gen. Stat. section 1A-1 over the issue of holding passports, particularly a Polish passport.
At a hearing, the defendant also raised the issue that there were no factual findings related to his passport or the child’s passport. He argued that the child custody hearing was not about him, and so the court didn’t have jurisdiction over his passport. The mother argued that the passport limitations were reasonable and the lower court was authorized to stop the defendant from using passports to travel with the child out of the country. The lower court corrected certain clerical errors but denied the motion for reconsideration. The judge felt confident that the order as it related to the passport was warranted under the law. The order specified that the father had engaged in secretive actions and made false statements to the mother about his own mother and his travel, which led to valid concerns about his intentions.
The father appealed. He argued that only the United States Department of State had the authority to impose restrictions on his passport and that the lower court had to show an appropriate exception to the general immunity of the Polish state from the jurisdiction of United States courts.
The appellate court reasoned that the custody order wasn’t void as a matter of law, and therefore affirmed the lower court’s order denying his motion for relief. It also reasoned that the defendant hadn’t argued the lower court’s decision to stay proceedings on his passport application affected a substantial right. The defendant didn’t identify a particular material right he’d lose if the order weren’t reviewed prior to final judgment or how he’d be injured if the order weren’t immediately reviewed.
North Carolina child custody disputes can have particularly unique challenges if one parent has strong ties to another country. If you are concerned about child custody issues, you should consult dedicated family law attorneys. Contact the Woodruff Family Law Group at 336.272.9122 or via our online form.
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