Obtaining a passport for your minor child seems like a simple enough task, especially if all parties are in agreement. But given the dynamics of certain families, things can get muddled relatively quickly. For example, what if one parent refuses to consent to the issuance of the passport? What if one parent is not in the picture or nowhere to be found? Or incarcerated?
The regulations in this area are strict to prevent one parent from unilaterally taking the child out of the country. Unless those regulations are complied with, the application will be denied and the parties applying for the passport on behalf of the child will have wasted their time and energy for no reason.
So how does a parent acquire a passport for their minor child?
If possible, all parties could agree and cooperate with each other to get the passport for the minor child. Even if the parties do not have an amicable relationship, it could be worth it for them to set aside their differences in order to achieve the result. In doing so, both parents (biological or adoptive) would have to do the following:
If one parent consents to the issuance of the passport but is unable to appear in person at a passport acceptance facility, they can consent by completing Form DS-3053 “Statement of Consent” which can also authorize a third party to apply for a child’s passport on behalf of the parents or guardians if neither can appear in person.
If one parent is not in the picture or, for whatever reason, wants to stop the other party from obtaining a passport for the minor child, things get more complicated.
One approach is for the person applying for the passport to provide evidence to establish that they have sole legal authority over the child in the form of a custody order, divorce decree, birth certificate, adoption decree listing you as the only parent, etc. – i.e., a legal document that allows them to solely make important decisions on behalf of the child.
If the other parent is being difficult or refuses to consent to the issuance of a passport and such documents do not exist, one can still file a petition in family court and request sole legal custody of the child or permission to obtain a passport on behalf of the child without the consent of the other parent. Once a petition is filed, a hearing would be scheduled at which time the Court would hear testimony and evidence about why it would be in the child’s best interest to have a passport. A list of what the judge has to consider in custody cases and how to prepare for them can be seen here.
If one parent cannot be located and it’s impossible for one or both of the child’s parents or guardians to provide the necessary consent, one would have to fill out and submit Form DS-5525 “Statement of Exigent/Special Family Circumstances” along with the child’s passport application to explain why they are unable to obtain consent from the other parent or guardian and what steps were taken to obtain consent. Note – submitting the Form DS-5525 in and of itself does not guarantee that the passport will be issued. The more information you provide the better. Be prepared to show what steps you took to locate the other parent and obtain their consent. If possible, have documents to back up your claims. The U.S. Department of State may ask for additional evidence to show you either have been diligent and/or request that you obtain a court order prior to issuing the passport.
The unfortunate circumstance of one parent being incarcerated could make obtaining the requisite consent difficult, but not impossible. There are different levels of incarceration. For instance, the parent may be in solitary confinement and is not permitted to send or receive mail; the parent may be incarcerated in a different country; etc. If obtaining the requisite consent from the incarcerated parent is virtually unattainable, then you can fill out Form DS-5525. You would still have to demonstrate what attempts you made to contact the other parent regarding the passport issue. As mentioned above, the more information you provide the better. It could be helpful to show why the other person is incarcerated, their sentence, etc. In spite of you providing this information and establishing your attempts to contact the other parent, a court order may still be required to obtain the passport.
The information above applies to children under the age of 16. If the child is 16 or 17, they would have to go through the nine steps outlined above and show that at least one parent or legal guardian is aware they are applying for a U.S. passport. The passport authorizing officer may request consent from the parent or legal guardian at their discretion.
The easiest and quickest way to obtain a passport for a child under 16 years of age is if both parties agree to it. The other way would involve a court order or legal document that would allow one party to apply for the passport on behalf of the minor child. Even if one is able to establish solid grounds that your child’s family situation makes it exceptionally difficult, e.g., one parent is nowhere to be found or incarcerated in a high-security facility, a court order may still be required and/or requested by the person authorizing the passport.
If you are having difficulty in obtaining the necessary consent for your child’s passport or have tried and have not been successful, you may wish to seek the assistance of one of Willig, Williams & Davidson’s domestic relations attorneys. Our experienced Pennsylvania family lawyers can advise you on your options and next steps.
