International Travel with Children: Identification Requirements

by David Starks, Senior Associate, McKinley Irvin, PLLC

If you plan to travel overseas soon with children, be aware that they may need special documents to enter the countries they will visit and to return to the United States. Here is a brief summary of new requirements that became effective in January 2007. A complete discussion of these requirements follows this summary.

International Travel: Current Identification Requirements and Anticipated Changes

1. What identification documents are required for U.S. citizens attempting to depart the U.S. or reenter after traveling to a foreign nation?

As of today's date, every U.S. citizen, including infants, must have a U.S. passport to reenter the United States when returning from a foreign nation other than a nation in the Western Hemisphere, except Cuba. For reentry from a Western Hemisphere nation (Canada, Mexico, Central and South America, not Cuba) all that is required is the satisfaction of the attendant customs and border protection officer that the entrant is a U.S. citizen. Generally, this means a valid photo I.D. issued by a government agency and/or other documents showing citizenship, like a birth certificate.

2. What changes will take place if the Western Hemisphere Travel Initiative (WHTI) is enacted?

The WHTI is the Department of Homeland Security's proposed response to Congress' 2004 mandate that all U.S. citizens be required to have a passport to reenter the U.S. from anywhere. When enacted, it will require a passport for reentry to the U.S. at all air and sea entry points, while changes to land entry points have been delayed. It is more likely than not, based on information given by the U.S. State Department on its website, that land entry points will also require passports in the near future. Currently, WHTI is scheduled to take effect on January 8, 2007 for air and sea entry points and June 1, 2009 for land entry points.

3. How difficult is it for a U.S. citizen to obtain a passport? Are there any special documentation requirements for children?

Obtaining a passport is not difficult for U.S. citizens, although there are fees and a waiting period.

The following State Department web link provides detailed information on how to obtain a passport for a child. http://travel.state.gov/passport/get/first/first_830.html

The following link will provide the nearest location to apply for a passport. http://iafdb.travel.state.gov/

4. What is the best way to handle traveling with children as a result of new WHTI regulations?

The easiest way to travel internationally with children is for each child to travel with both parents and for all persons to possess a valid U.S. passport. If a child is traveling with only one parent, they must bring a notarized letter from the other parent granting permission to travel, or other appropriate documentation discussed in the attached article..

All persons may leave the U.S. generally unfettered, but a child attempting to enter a foreign nation with one or no parent will be subject to that nation's own regulations. For example, before entry is allowed, Canada and Mexico each require that a child present a notarized letter of permission from one or both parents, or other evidence that the accompanying parent or guardian has sole custodial rights. The U.S. State Department website lists each country's requirements at http://travel.state.gov/passport/get/minors/minors_834.html#step7minor.

Current Reentry to U.S. Regulations

In general, it is unlawful for any U.S. citizen (hereafter �citizen�) to leave or reenter the U.S. without a valid U.S. passport. 8 U.S.C.A. 1185(a); 22 C.F.R. 53.1. However, the Supreme Court has recognized a constitutional right to travel internationally. See e.g., Zemel v. Rusk, 85 S.Ct 1271, 381 U.S. 1, 14 L.Ed.2d 179 (recognizing a right to travel internationally, but not without regulation). Thus, exceptions to the general passport rule have been adopted to promote ease of travel and commerce. The most common exception is set out in 22 C.F.R. 53.2. A citizen is not required to bear a passport for reentry if traveling �between the United States and any country, territory, or island adjacent thereto in North, South, or Central America, excluding Cuba�, unless that person has also traveled to a country where a passport is required within 60 days of reentry. Id.

Thus, when reentering the U.S. from the western hemisphere by air, sea, or land, citizens are simply inspected by Department of Homeland Security (DHS) and Customs Border Protection (CBP) officers, and must satisfy that officer that he or she is a U.S. citizen in order to gain reentry. The most common forms of identification used are driver's licenses, birth certificates, certificates of naturalization, and consular reports of birth abroad. Documents Required for Travelers to The United States at Air and Sea Ports of Entry Within The Western Hemisphere, 71 F.R. 46,155 (proposed Aug. 11, 2006) (to be codified at 22 C.F.R. parts 41 and 53). See also, Inspector's Field Manual, United States Department of Justice Immigration & Naturalization Services.

Changes Proposed By WHTI

Against the background of the September 11, 2001 terror attacks, Congress found that such uncertain procedures for reentry were a �vulnerability� exploited by terrorists and others, and required DHS to implement stronger reentry requirements no later than January 1, 2008. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638, Secs. 7209(a) and (b) (2004) (hereafter, IRTPA). IRTPA stipulated that the new procedures require passports for reentry from western hemisphere travel. Id. However, it also noted that DHS must continue to accommodate the needs of frequent travelers and commercial operators for secure yet efficient border crossing. Id. Pursuant to this mandate, DHS and other applicable agencies published an Advance Notice of Proposed Rulemaking, 70 F.R. 52,037 (proposed Sept. 1, 2005) , for public comment. Along with the proposal of a general requirement of passports for citizen reentry, the notice proposed that certain programs already in place for frequent border crossers remain in place . Id. at 52,038. Additionally, DHS proposed that the passport requirement only be waived if (1) the Secretary of Homeland Security determines that documentation other than a passport is sufficient under IRTPA; (2) in an individual case of unforeseen emergency; and (3) in an individual case based on �humanitarian or national interest� reasons. Id. at 52,039. Finally, DHS proposed that the new regulations be in force for air and sea travelers no later than December 31, 2006, and December 31, 2007 for land border travelers. However, the effective dates have been hotly debated, and currently are set for January 8, 2007 for air and sea, and June 1, 2009 for land.

In sum, it is very likely that all U.S. citizens seeking reentry from any other country in the world must have a U.S. passport or other DHS approved document in order to gain reentry beginning January 8, 2007 for air and sea travel and June 1, 2009 for land travel.

Regulations for Obtaining a Passport

A U.S. passport is a travel document given under the authority of the Secretary of State attesting to the identity and nationality of its bearer. 22 C.F.R. 51.1. A U.S. passport can only be issued to a U.S. citizen. 22 C.F.R. 51.2. Getting a passport for a U.S. citizen is fairly straightforward. Persons over eighteen years old who have previously been issued a passport in his or her own name within the past fifteen years, can apply by mailing a completed passport application, two photographs, the previous passport, and the established fee to the nearest U.S. passport agency. 22 C.F.R. 51.21. Persons applying for a passport for the first time and children who had their most recent passport issued before their sixteenth birthday must apply in person at a U.S. passport agency. Detailed instructions and downloadable application forms are available at http://travel.state.gov/passport/get/renew/renew_833.html. (last visited Oct. 9, 2006).

Persons applying for a passport in person, in addition to photos, fees, and completed application forms, will also need sufficient documentation of their U.S. citizenship and identity. A certified copy of the applicant's birth certificate is the best document of citizenship; however, exceptions are also possible. 22 C.F.R. 51.43. Identity can be established with convincing documentation or through a witness. 22 C.F.R. 51.28.

Obtaining a Passport for a Child By One Parent

For passport purposes, a minor is defined as an unmarried person under the age of eighteen years. 22 C.F.R. 51.27(a). A minor aged 14 to 17 must apply for a passport on his or her own behalf and is subject to the same general procedures as adults above. 22 C.F.R. 51.27(b). For a minor under age 14, both parents or legal guardians must apply for the minor's passport on his or her behalf and show documentation of parentage, indicating the child's name, date and place of birth, and the names of both parents . Id. at (b)(2)(ii). However, one parent only may apply for a passport on behalf of a minor by presenting one or more of the following documents:

a notarized written statement or notarized affidavit from the non-applying parent or guardian consenting to the passport;
a birth certificate providing the minor's name, date and place of birth and the name of the sole parent;
a consular report of birth abroad of a U.S. citizen or a comparable document;
an adoption decree showing only one adopting parent;
a court order granting sole custody to the applying parent or guardian that contains no travel restrictions inconsistent with the issuance of a passport;
a judicial declaration of incompetence of the non-applying parent;
a court order specifically permitting the applying parent's or guardian's travel with the child;
a death certificate for the non-applying parent;
a copy of a commitment order or comparable document for an incarcerated parent.

22 C.F.R. 51.27(b)(2)(v)(A-H).

Additionally, if a parent submits a custody decree for these purposes, a passport agency will consider the judicial limitations on the minor's ability to travel, if applicable, before granting a passport. Finally, either parent may obtain information regarding a minor's passport application unless the inquiring parent's parental rights have been terminated. 22 C.F.R. 51.27(d)(2). A passport will not be granted to a minor under 18 when there is a custody dispute and the non-applying parent has submitted to the State Department a court order showing sole custody to the objecting parent, joint custody, or a requirement of both parent's permission for travel by the minor. 22 C.F.R. 51.27(d). These measures were put in place to protect children from abduction by estranged parents in custody disputes. Parents involved in custody disputes may inquire with the State Department as to whether an application for passport has been submitted for a child. Parents may also give notice to the State Department that they have legal custodial rights and wish to prevent a passport being issued to their child.

Practical Considerations for Traveling Abroad with Children

Aside from the need to obtain a passport, travelers abroad should seek information on the identification requirements for entry for all foreign nations they will visit, including special requirements for children. Each nation sets its own standards, and information on the requirements for each nation can be found on the State Department website, given above. For the most accurate information, travelers should contact the foreign consulate of each nation they plan to visit. There are a wide variety of requirements including in some cases, visas, immunization records, proof of funds, and proof of return ticket.

An important concern for traveling with children without both parents is each nation's requirement for documentation that the child has the permission of both parents to travel. For example, Canada and Mexico both require documentation that children are traveling with permission or that the traveling parent has sole custodial rights. Again, the requirements for each nation vary and can be found on the State Department website. Many, but not all, nations have adopted the Hague Convention on The Civil Aspects of International Child Abduction, an international agreement to prevent child abduction and to cooperate with other nations for the safe return of abducted children. The United States has joined this agreement, and the legal implications can be found at 42 U.S.C.A. 11601 and following.