Case Update (2020): OG v. AB; Abduction Prevention, Restrictions on Passport Renewal, Ne Exeat

In the custody trial of OG v. AB, a Mother expressed her desire to take the parties’ children to visit her family in her native Russia but indicated that the Father was unwilling to give her the children’s expired Russian passports so that she could renew them for the travel.  The Father testified that the mother had previously threatened to “never let him see the Children again” and he was concerned she would not return to the United States once in Russia. The children are dual nationals of Russia and the United States.

At the conclusion of the trial, the parties were granted shared legal and physical custody and the court issued a writ of ne exeat, prohibiting either parent from traveling with the Children outside of the continental United States without the written consent of the other parent.  The court declined to authorize the renewal of the children’s Russian passports because Russia and the United States are not treaty partners under the Hague Child Abduction Convention.  It also credited Father’s testimony when he articulated his concerns that the Mother would retain the children in Russia.

On appeal, the Mother argued (among other things) that the court’s ne exeat violates her constitutional right to travel.  She also argued that the trial court’s decision could be construed so as to refuse her request to renew the children’s Russian passports.  

The appellate court noted that the mother’s constitutional right to international travel is not unqualified and can be regulated within the bounds of due process. It concluded that passport renewal is similar to a parent’s request to relocate his or her child, and the appropriate standard is to determine if it is in a child’s best interest to have his or her passport renewed.  

At trial, the court stated that restricting the children’s passport renewal “did not alter the children’s citizenship status” as dual nationals.  The court, however, made no findings or conclusions to support this statement. The appellate court remanded for the trial court to determine whether restricting the renewal of the children’s Russian passports would impact their status as dual nationals.  If restricting the passport renewals would cause the children to lose their dual citizenship, then the trial court is instructed to allow the renewal but put in place safeguards to prohibit the passports from being used without the court’s prior approval.