Parental Consent for a K-2 visa minor

Imagine Ana Doe lives in the US with her husband and young child. She has a fight with her husband and decides to take her kid and move back permanently to Brazil.

According to US law, if she doesn’t have some sort of divorce agreement, child custody agreement, or permission from the father, she’s not allowed to remove the child on her own (CBP – traveling with a minor child). That’s considered parental kidnapping. 

It’s the same with international law. If your K-2 visa child is headed for the interview, you first have to make sure you have rights to remove him/her permanently from the country and away from the other parent. 

Trying to stick to these international laws, the US Embassy wants to be sure they don’t inadvertently grant you a K-2 visa you may use in connection with parental kidnapping. That’s why when you go to a K-2 visa interview, you may be asked for some evidence that you’re allowed to relocate this child.

Either you present a

❒ court order

❒ child custody agreement

❒ written permission from the other parent

Any of these three must specifically allow you to relocate the minor K-2 visa child to the US. This is known as parental consent.

.

How do I know if I need parental permission (consent)?

So, how do you know if you need parental consent to take your child out of the country with a K2 visa? Or away from the other parent? 

The answer is that you always need permission. But this doesn’t mean you necessarily need to get this permission in writing. It all depends on the host country’s laws.

Let me explain. 

The following ways legally grant you traveling rights for a minor child. As such, the US Embassy grants a K-2 visa if any of these are presented:

❒ Child Custody documents

Either you have full, sole custody of the child where it explicitly says that you may remove him/her from the country. If that’s the case (such as for the Philippines where sole custody is automatically bestowed upon the mother) then there’s no need to get the other parent’s permission. But you must be able to present documentation that you have sole custody. In other countries, family law grants both parents parental rights. For that, you have to flip through your settlement agreement and see what it says.

If you currently have sole, full, permanent custody of the K2 children, then that’s all you need for the K visa interview.

❒ Letter of Consent

If you don’t have full, sole custody, then you get a written and signed statement from the other parent saying the child’s allowed to permanently relocate to the US. This is separate from whatever custody agreement you may already have.  

❒ Court Order

If neither of the two above work, then you can try to get a court order granting your permission to take the K-2 child with you to the US.

❒ Death Certificate

The last method is to present a death certificate if the other biological parent is deceased. Which automatically gives the surviving parent sole custody.

The US Embassy, like I said before, won’t grant a K-2 visa if it might mean parental kidnapping. Therefore, the US Embassy will ask for one of the options we’ve discussed. 

So, in your K visa interview, bring along the sole custody agreement, court order, death certificate, or written permission from the other parent. Otherwise, your minor child will not be approved for a K-2 visa.

.

How do I prove I have permission to relocate my child?

Now, let’s delve a little deeper into the options of showing traveling rights with a minor.

❒ Child Custody agreements

First ask: what’s the current custody arrangement for your children? Do you even have one?

If not, what do the laws in your country say about parental rights? For most countries, both parents have equal rights. In some countries, men have more than women and vice versa for others.  

If you have sole custody, then you may still need other parents consent depending on whether custody agreement explicitly allows traveling rights OR if the host country’s laws allow travel with just sole custody alone.

❒ Court order or Parental Consent Letter

What if you don’t currently have any written custody agreement? What do you do?  

You have two options:

● Either go to the other parent and get permission in writing (parental consent) which we’ll talk about below. 

● If you cannot find the parent OR if this parent is unwilling to cooperate, you go to court and request travel permission.

To make things more complicated, there’s a bit of inconsistency regarding whether or not a letter / permission is actually required. 

In many fiance K-1 visa couples interview experience, they were asked to present parental consent even if they already had sole custody. Other times they weren’t asked even if they had no written document. It’s a complex mix of international law, Embassy policy and the host country’s civil laws.

That’s why I recommend that if you don’t full, sole custody, then be sure to email the Embassy and ask them specifically if they want any documents regarding the parental consent. 

But in most cases, you should assume you have to provide parental consent.

.

How to write the Letter for Parental consent

Let’s assume you don’t have a sole custody agreement or a court order granting you traveling rights, how else do you get parental consent? 

Well, it’s a simple as writing a letter. 

There’s no official template or way to write this letter of parental consent. However, there is one Embassy which provides a brief outline.

Take a look at the template from the US Embassy in Bangkok, Thailand. https://th.usembassy.gov/visas/immigrant-visas/packets/

First of all, notice that the Embassy requires that all minors (K-2 visa applicants) show traveling permission in the form of custody agreements or parental permission. 

Secondly, the outline suggests the letter contain the following: 

□ Identification of both parents (with photo IDs)

□ Non-traveling parent clearly states that he/she allows the child(ren) to emigrate to the US and relocate there permanently.

□ Letter must be notarized, signed and dated

□ Letter can be drafted by both parents (or an attorney)

In particular, the Thai’s US Embassy says that the other parent must notarize this letter at the District office (Amphoe) on official letterhead. 

That’s just a Thai US Embassy requirement. It’s not the same for other countries. So, follow up with the US Embassy by email and ask them to clarify.

What if the other parent won’t cooperate?

What if the other parent objects to the child being taken away OR if the other parent doesn’t cooperate to write this letter? 

Here are your only two options:

□ Option # 1 – Try to get the letter (preferred method)

The best option is to come up with a solution and avoid going to court. It’s best to negotiate and offer something in return for the other parent’s consent.

For example, you can ask the other parent to consider how much better the child’s life would be (if that’s the case) by moving to the US. Or that you won’t go to court and demand child support payments if the other parent has arrears. Talk it out. Work it out. This is the fastest, cheapest, and preferred method.

After that, all you do is write that letter of parental consent (from above) and bring it along to the K visa interview.

□ Option # 2 – Go to court (not preferred)

Your last resort is to go to court and settle this. Or whatever route is recommended by a family attorney in your host country.

This isn’t recommended due to complex family laws in other countries, the cost of it, slow pace in foreign countries, not to mention a whole bunch of stress already on top of the fiance K-1 visa process. 

You may even risk it taking several months / years to get this over with.

.

What is the POE procedure for K2 children?

Let’s say you got the sole custody or letter of permission from the other parent, and furthermore, let’s say that you got the K-2 visa, what is the next step? what happens at the Port of Entry? 

Well, nothing really different. It’s possible the CBP officer may ask to see parental consent. But in most cases, there’s not a problem at the Port of Entry with a K-2 visa as long as you accompany him/her. 

But what if a K2 child doesn’t travel with you (the K1 parent), but instead travels afterward such as for “following to join”? What is the travel clearance procedure then? 

Most countries don’t allow a minor to travel alone outside the country without an accompanying parent or a letter. So, if your K-2 child is coming a bit later on “following to join” or coming later after the K-1 parent, then be sure to have a consent letter handy.

Common Questions

There’s a lot of confusion with this parental consent issue and K visas. Here are a few of the common ones. (In the end, you can drop a comment and ask your own question)

❐ What if you don’t have sole custody and can’t find / locate the other parent? Or the other parent abandoned the child?

Did you try to contact him/her? Did you try to track them down? Did you ask his/her family or friends about the whereabouts? Do your due diligence to track down the other parent.

Regardless, if you don’t have sole custody you must get a written permission or court orders. And most courts will demand that you get a police report or ask the police to find this missing parent before you’re granted permission. All of this depends on the country’s civil laws.

Many times if you do both of the above, the host country will grant you custody and the Embassy will allow the K2 visa.

❐ How does giving parental consent affect your legal rights?

If the children’s other parent gives permission for them to travel and relocate to the US — how does that affect their legal rights in terms of child custody? Child support? Or other visitation rights?

Well, it depends on what you agree to. If it’s a court order or agreement then you can have as much or as little as you want spelled out. Perhaps the other parent might still be liable to pay child support. Other times, you may use that as a bargaining chip and say you’ll waive the child support.

You may even make up an alternative child visitation plan — perhaps the other parent wants to see the child once or twice a year. It depends on what you agree to.

❐ Does this only apply to fathers of K2 children or mothers as well?

Parental consent can come from either parent. But it also depends on the country’s child custody laws.

❐ What if the other parent is an adoptive parent?

The same deal applies. The rule is whether or not there is any legal right for one parent to exercise their right on the child. This means either a biological parent or even an adoptive parent. As long as he/she has legal custody, then you must use one of the two methods we discussed.

TIPS to help

To make this step a bit easier, let’s go over a few tips.

❐ Don’t wait

Do this immediately. In most cases, the process to get parental consent takes long and the court process may be lengthy (if courts are involved or if the other parent is not cooperating).

If you know K-2 kids require this permission, you should start working on this immediately as soon as you know you will file for a fiance visa.  That’ll save you months of headache and fear.

❐ Following to join

If you feel you’re going to have trouble with parental consent, then you may use “following to join” for the extra time it takes after your K1 visa is approved.

For example, if you’re going for the K-2 visa but the situation with the parental permission hasn’t been sorted out yet, then use “following to join” as a last resort to buy a more time. Perhaps by the time it settles, your K-2 child is still eligible within 1 year.

❐ Contact the other parent, family or friends

If you can’t locate the other parent or if he/she doesn’t want anything to do with your child, then swallow your ego and anger (if there is any) and try to resolve this as civilly as possible. 

It’s usually the least stressful if you have the other parent’s permission rather than trying to go to court and risking legal issues. Contact the parent OR their family/friends before you resort to the courts.

Get your parental consent

Let’s summarize what we talked about.

Parental consent is required whenever you have minor K-2 visa children. There are generally three ways to show proof that you can travel with children and relocate them to the US. 

The first is having sole custody documents proving you have travel rights. If you have that, then ask the Embassy if you need anything else. Otherwise, you can walk into the K-1 visa interview with your custody agreements. 

The second method is to have court orders to specifically allow travel rights. This generally takes a long time, not to mention the headache that comes with it. 

The final and preferred method is to simply get a letter from the other parent with permission to relocate K2 visa children to the US. If the children’s other parent cooperates and agrees to sign this parental consent letter, then bring this letter to the K visa interview. 

Below in the “comments” section, you can share how your experience OR simply ask a question.