A father has been directed to cooperate in obtaining a renewed passport for his now 10-year old daughter. Reversing the order of New York County Family Court Referee Marva A. Burnett in its December 11, 2014 decision in Matter of Noella Lum B. v. Kristopher T.R., the Appellate Division, First Department, directed the father to execute all documents necessary to obtain the renewal passport.

The parenting agreement entered into between the parents in 2007 provided for residential custody to the mother and visitation to the father. The agreement contemplated “air travel” by the child with one parent. It did not prohibit either party from traveling outside of the United States with the child.

The mother previously had traveled internationally with the child, both before and after the parties’ separation, until the child’s passport expired in 2009.

Although the parenting agreement required the parties to execute all documents that may be necessary to give its provisions full force and effect, the father refused to execute documents necessary for the renewal of the child’s United States passport. The mother petitioned the Family Court to compel the father’s cooperation.

Reviewing the evidence at the hearing before Referee Burnett, the First Department held the father failed to demonstrate that there had been a significant change in circumstances warranting modification of the agreement to prohibit international travel. Although the father claimed that relations with the mother had deteriorated and that he feared she would abscond with the child, he acknowledged that the mother had complied with all aspects of the parenting agreement. Moreover, the mother had never threatened to take the child, and had returned from all prior trips with the child, which she had taken with the father’s knowledge and consent, in a timely manner and without incident. Still further, although the father asserted that the mother had family living abroad (which had always been the case), the mother is a citizen of the United States and has significant family connections here.

Indeed, the father characterized the risk of the mother absconding with the child as remote or a 1% chance, and did not object to the child traveling abroad when she turned 12, which would occur three years after the hearing. Moreover, although Referee Burnett’s credibility determinations were entitled to “great deference,” in this case, the Referee’s determination that the mother posed a flight risk based upon, among other things, her two prior applications for relocation, which were made pursuant to the agreement, lacked “a sound and substantial evidentiary basis.” The evidence did not support the Referee’s finding that the mother would permanently remove the child from the country if she obtained the requested passport. (The appellate court further noted that the attorney for the child has at all times supported the mother’s application.)

For a prior discussion and links to forms, see, Passports and International Travel for Children of Divorce.

Madeleine Nisonoff, Esq., of Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C., of Manhattan, represented the mother. Karen Freedman, Lawyers for Children, Inc., (Shirim Nothenberg of counsel), served as Attorney for the Child.