Custody & Kidnapping

Although I am not an expert on this particular issue, I did some research for you on this issue and found this information from the US government’s website: https://travel.state.gov/content/passports/en/passports/under-16.html
Basically, what the government website above says is that unless a person has sole legal custody of the child, then both parents may need to give permission. However, if the approval of the non-custodial parent cannot be obtained, there is a form (DS-5525) to include the exigent/special family circumstances which explain why it is not possible to obtain such consent. The form defines exigent/special family circumstances as follows: “Your request may qualify as an exigent circumstance if there is a time-sensitive emergency and the in ability of the minor to obtain a passport would jeopardize the minor’s health or welfare. Your request may qualify as a special family circumstance if the minor’s family situation makes it exceptionally difficult or impossible for one or both of the minor’s custodial parents/legal guardians to provide the notarized, written consent.” [ONLY INCLUDE IF YOU THINK THERE IS DV: You can find the form here: https://travel.state.gov/content/travel/en/passports/how-apply/forms.html and we discuss how domestic violence may be relevant in regards to this form at the end of this email.]

Here is the information from the website about parental consent for a child under age 16. It says:

“Both parents/guardians must authorize the issuance of the child’s passport. The best way to do this is for both parents/guardians to go with the child in person to apply for the passport.

¹What if both parents/guardians cannot appear in person?¹

If you have sole legal authority:
¹ You must submit evidence of this with the application. Examples include:
¹ Complete court order granting you sole legal custody of the child, such as a divorce decree or other custody order
¹ Complete court order specifically permitting you to apply for your child’s passport (photocopy is acceptable)
¹ Certified copy of the child’s birth certificate listing you as the only parent
¹ Certified copy of an adoption decree listing you as the only parent
¹ Certified copy of the judicial declaration of incompetence of the parent that cannot appear in person
¹ Certified copy of the death certificate of the parent that cannot appear in person

If one parent is unable to appear:
If one parent/guardian cannot go with the child to apply for the passport, they can give permission by completing Form DS-3053 “Statement of Consent.” You must submit the completed form with the child’s passport application. The parent that cannot go with the child must:

¹ Sign and date Form DS-3053 in the presence of a certified notary public, and
¹ Submit a photocopy of the front and back side of the ID that they present to the notary public with Form DS-3053.

If you cannot locate the other parent:
You must submit Form DS-5525/ “/Statement of Exigent/Special Family Circumstances.”

¹ Please complete the form with as much detail as possible.
¹ We may ask for additional information (e.g., custody order, incarceration order, restraining order) to protect against international parental child abduction.

If neither parent is able to appear:
A third party may apply for the child’s passport with a notarized statement from both parents/guardians giving that third party permission to apply for the child.

¹ The statement must include a photocopy of the parents/guardians’ identification.
¹ When the statement is from only one parent/guardian, the third party must present evidence of sole custody of the consenting parent/guardian.

¹Please Note¹: Written authorization from the parent that cannot appear in person must be less than three months old.”

[ADD IF THERE MAY BE DV OR SOME OTHER REASON THAT SHE CAN’T GET THE A’S SIGNATURE: As you can see from the information above, taken from the government’s website, form DS-5525 can be used if one parent cannot locate the other parent. However, in some situations, a victim of domestic violence who has a valid order of protection against the other parent may also be able to use this form in order to try to prove that s/he cannot contact the other parent. A victim may also be required to provide additional “proof” that s/he experienced domestic violence, which may include court documentation. Often, having an attorney’s help in filling out this form may be helpful to best be able to make one’s case that due to the danger, the parent cannot contact the other parent.]

[THIS TALKS ABOUT STARTING A CUSTODY CASE OR AMENDING A CURRENT CUSTODY ORDER. IF YOU KNOW WHETHER OR NOT THERE IS A CUSTODY ORDER ALREADY, AMEND THIS ACCORDINGLY TO TAKE OUT THE PART THAT DOESN’T APPLY: If the other parent refuses to give his/her permission, it may be possible to take the other parent to court as part of a custody case and ask the judge to order him/her to give his permission - however, there can be many pros and cons to starting a court custody case and some unintended long-term consequences. Before filing custody for the purpose of the trying to get a passport, you may want to get advice from a lawyer on whether or not a judge in your county would even address the issue of signing a passport and think through the pros and cons of beginning a custody proceeding. Or if there is already a custody order in place, the parent seeking consent may be able to take the other parent to court to ask a judge to modify (change) the existing custody order, and potentially order the other parent to give his/her consent. Speaking with a lawyer who specializes in family law may be helpful in determining whether this option might be available. Here is a link to lawyers, free and paid: LINK]