May a non-custodial parent withhold his or her consent from the custodial parent’s efforts to obtain a passport for a child? Apparently not, especially if the need for the passport is for the child to visit an ailing grandparent.

In Snowden v. Snowden, a June 6, 2018 decision of the Appellate Division, Second Department, the parties’s June 27, 2016 divorce judgment was entered upon the father’s default. The judgment provided that the mother would have custody of the parties’ minor child, and the father would have physical access.

Following the divorce, the mother attempted to obtain a passport for the child so that the child could visit her ailing maternal grandmother in South America. However the father refused to provided his needed consent and thus, the mother was unable to obtain the passport.

As a result, and within three months of the entry of the divorce judgment, the mother filed a petition pursuant to Family Court Act Article 6, seeking to modify the judgment of divorce so as to award her sole legal and residential custody of the child and to permit her to obtain a passport for the child. Following a hearing, Suffolk County Family Court Ct. Atty. Ref. Colleen M. Fondulis granted the mother’s petition. The father appealed.

The Second Department affirmed. The Court held that Referee Fondulus had properly determined that a change in circumstances sufficient to support a modification of the judgment of divorce was established by the mother’s inability to obtain a passport for the child so that the child could visit her maternal grandmother and the father’s refusal to consent to the mother obtaining the passport. The totality of the circumstances justified the modification so as to award the mother sole legal and residential custody of the child and to permit her to obtain a passport for the child in order to protect the best interests of the child. Accordingly, the Second Department held the determination of Referee Fondulus was supported by a sound and substantial basis in the record and would not be disturbed.

It is not clear what practical changes were caused by the change in the custody award itself, as the mother had had legal and primary residential custody under the divorce judgment. However, it is clear that to withhold consent to a passport application, a parent should have a substantial reason.

Kevin G. McClancy, of Central Islip, NY, represented the mother. Gina M. Scelta, of Huntington, represented the father. Jordan M. Freundlich, of Lake Success, NY, served as attorney for the child.

  • Barbara J. Schaffer, Esq.

    Neil, thanks for highlighting that helpful case. Anecdotally, a client of mine was also prevented from getting a child passport because the DOJ said custody to mother. The State Dept. apparently looks for the term “sole custody” if they are to obviate consent from other parent. We amended DOJ to say “sole” custody, and she got the passport.