A New International Custody Problem: Turning Over the Passport Gets Lawyers Sued

Charles C . Shainberg, Esq. on 07/20/2010

About The Author

Shainberg & Viola

Contact Charles C . Shainberg, Esq.

More by
Charles C . Shainberg, Esq. »

            “Cover your rear” is a lesson learned early on in the careers of most attorneys. Depending upon the outcome of a case pending in Bergen County, New Jersey,  “Hold that darn passport” may be a new lesson for family law attorneys or any other attorney who comes into possession of the passport of a client.

            In this particular case, in 2004, an agreed-upon parenting schedule was entered into which provided, in part, that the mother, a Spanish citizen, was not going to leave the United States with the child, who had dual US-Spanish citizenship.  This agreement also specifically provided that the mother’s attorney, Attorney A, was to hold on to the child’s U.S. passport.[1]  Subsequently, the mother changed attorneys and Attorney A turned over the file to the new attorney (Attorney B). The file included the agreed-upon parenting schedule, which was never entered as an Order of Court, and the U.S. passport of the child.  At some point after the file was transferred, the mother asked her new lawyer, Attorney B, for the passport and the law firm complied. 

            In 2005, the mother took the 4 year old child with her to Spain.  In 2006, the mother returned to the United States without the child.  Following litigation in New Jersey, the mother was directed to return the child to the United States, which she refused to do.  Attorney B then withdrew from representation of the mother, who was ultimately convicted in 2010 of contempt and custodial interference.  The mother is presently serving a fourteen (14) year sentence incident to that conviction.  During this entire time and currently, the child has been living with her maternal grandparents in Spain. 

            The father in the custody case has now sued Attorney B for turning over the passport alleging that the attorney’s actions aided in the child’s abduction to Spain.  The father is claiming that Attorney B violated the terms of the parenting agreement when the passport was turned over to the mother.  It has been reported that Attorney B, in its defense, is asserting that it can not be held responsible because it was not specifically named in the parenting agreement as the person to be holding onto the passport.  Because it was not a party to that parenting agreement, Attorney B claims it is not bound by its terms. Attorney B asserts that any trusteeship of the passport that was created by the parenting agreement stayed with Attorney A.  Any change to the term in the agreement would have required the mother’s permission.  From Attorney B’s perspective, the lawyer had no right not to turn over the passport to the custodial parent, the mother.

            As an aside, while there were proceedings in New Jersey in the underlying custody case, there were also court proceedings in Spain. The Spanish Court determined that the mother did not abduct the child and that the child can remain in Spain.  The New Jersey and Spanish judges have met in the Hague in the Netherlands, presumably neutral grounds, to discuss and hopefully resolve the conflicting orders that have been entered in custody case.  However, they were unable to reach an amicable resolution.

            There is a local connection to this case.  Jerome Shestack of Schnader Harrison unsuccessfully argued for the mother’s release in a federal habeus corpus proceeding.  Shestack represents the Spanish city of Valencia, an amicus in the federal proceedings.

            The outcome of this case, which is scheduled to go to trial in August, may make attorneys think twice before agreeing to hold the passport for a client or the child of a client.  It may also put attorneys on notice that they should carefully comb through the file to see whether or not there have been any orders or agreement that can make the new attorney a trustee for his or her client’s property.  Until there is a clear indication from the Court on this issue, the next time a client says, “Just give me the passport so I can take the kids to the Bahamas for the summer,” you may be better off just telling the client, “No.”