New York Divorce and Family Law^™     

     Parents who do not have sole custody of their children no longer may be able to travel with them outside the United States without a court order or written consent of the other parent.

     Effective June 2, the Department of State’s Bureau of Consular Affairs adopted a rule that is intended to bring passport regulations into conformity with current practice. It amends Part 51 of Title 22 of the Code of Federal Regulations (66 FR 29906). The rule is intended to use the passport application process as a vehicle for deterring parental child abduction. Passports no longer are issued without both parents’ consent for children who are the subject of a custody dispute or where there is joint custody.

     The rule, 22 CFR §51.27(b), requires both parents or each of the child’s legal guardians to execute the passport application on behalf of a minor under age 14, under penalty of perjury, whether applying for a passport for the first time or a renewal. In addition, documentary evidence of parentage is required showing the minor’s name, date and place of birth, and the names of the parent or parents. A person making false statements or providing fraudulent documents to procure a passport is subject to criminal penalties.

     A passport application may be executed on behalf of a child under age 14 by one parent or legal guardian only if that person provides documentary evidence that he or she is the sole parent or has sole custody, or if the non-applying parent or guardian provides a written statement of consent.

     When both parents have abandoned the minor or are deceased and there has been no formal or legal determination of custody or guardianship (such as when a relative has assumed responsibility), documentation of legal custody or guardianship must be obtained and submitted. If exigent circumstances apply to a child in this situation, a passport would be issued without such documentation if failure to do so would cause grave danger to the child. These would include medical evacuation of a child from a foreign country to the United States or an emergency evacuation of U.S. citizens from a foreign country during a period of civil unrest.

     An individual may apply in loco parentis on behalf of a minor by submitting a notarized written statement or a notarized affidavit from both parents specifically authorizing the application. However, if only one parent provides this, documentary evidence of the parent’s sole custody must be presented. Examples of documentary evidence can be: a birth certificate showing the name of the sole parent, a Consular Report of Birth Abroad of a Citizen of the United States of America (FS-240), a Certification of Report of Birth of a United States Citizen (DS-1350) showing the name of the sole custodial parent, an adoption decree showing only one adopting parent, an order granting sole custody to the applying parent or legal guardian and containing no travel restrictions inconsistent with issuance of the passport, a judicial declaration of incompetence of the non-applying parent, a court order specifically permitting the applying parent’s or guardian’s travel with the child, a death certificate for the non-applying parent, or a copy of a commitment order or comparable document for an incarcerated parent.

     In cases of exigent or special circumstances, the written consent requirements may be waived by a senior passport adjudicator or the deputy assistant secretary for passport services. For applications filed abroad, written consent requirements may be waived by the deputy assistant secretary for overseas citizens services. Exigent circumstances are defined as “time-sensitive” matters in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or result in the child being separated from the rest of the traveling party. Time-sensitive generally means there is not enough time before the minor’s emergency travel to obtain either the required consent of both parents/guardians or documentation reflecting a sole parent/guardian’s custodial rights.

     Examples of exigent circumstances could include a minor who must travel due to a serious illness in the immediate family, a child who must travel to receive emergency medical treatment or one whose passport is lost or stolen while abroad. Examples of special family circumstances can include: a situation in which the non-applying parent has abandoned the family and his/her whereabouts are unknown, or a situation in which the non-applying parent is unable to give written consent due to serious health problems. Inconvenience to the non-applying parent will not be considered.

     However, a non-applying parent who cannot personally appear at an acceptance facility passport agency, U.S. embassy consulate or consular agency abroad to sign the minor’s application may send the signed consent statement by overnight delivery if the minor’s travel is urgent, or fax it to the applying parent or passport issuing office if the minor’s travel is imminent. Special family circumstances are those in which the minor’s family situation makes it impossible for one or both parents to execute the passport application.

     A parent applying for a passport for a child under age 14 who seeks an exception must submit with the application a written statement, subscribed under penalty of perjury, describing the exigent or special family circumstances the parent believes should be taken into consideration.

        Abduction defense

     The State Department has a program that provides for parental notification and the denial of a passport to a minor of any age who is the subject of a child custody dispute. The Children’s Passport Issuance Alert Program enables the State Department’s Office of Children’s Issues to notify a parent or legal guardian, when requested, before issuing a U.S. passport for his or her child. At the request of a custodial or non-custodial parent, legal guardian, legal representative or a court of competent jurisdiction, the department will enter the child’s name into its passport name-check clearance system to alert the requesting parent if a passport application is received for the child.

     To deny a passport application, the department must have on file a written request for denial from a parent, legal guardian or an officer of the court, and a complete copy of a temporary or permanent court order that provides for: (1) sole legal custody to the requesting parent; (2) joint custody to both parents (which the department treats as inherently requiring both parents to consent to passport issuance); or (3) a restriction on the child’s travel or a requirement that both parents or the appropriate court give permission.

     The Code of Federal Regulations (22 CFR §51.27(d)(1)(i)) provides that when there is a dispute concerning the custody of a child under age 18, a passport may be denied if the department has on file a copy of a court order which: grants sole custody to the objecting parent, establishes joint legal custody, prohibits the child’s travel without the permission of both parents or the court or requires the permission of both parents or the court for important decisions unless written permission is granted.

     A court order providing for joint legal custody will be interpreted as requiring the permission of both parents. The department may require that conflicts regarding custody orders, whether domestic or foreign, be settled by the appropriate court before a passport may be issued. However, notwithstanding the existence of any such order, a passport may be issued when compelling humanitarian or emergency reasons exist relating to the welfare of the child.

     Either parent may obtain information regarding the issuance of a passport to a minor his or her parental rights have been terminated by a court order, which has been registered with the State Department. However, the department may deny such information to any parent if it determines the minor is of sufficient maturity to assert a privacy interest in his or her own right. In that case, the minor’s written consent to disclosure is required.

     As a consequence of the federal rule, counsel would be well-advised to add a clause to every custody agreement granting the parents written consent to obtain a passport for the children. Where the custody issue is litigated, counsel should seek a court order authorizing the issuance of a passport for the child. Conversely, where a parent fears there may be an international child abduction by the other parent, she or he should alert the State Department there is a custody dispute.

Ellen Seigerman Brandes, a member of the Law Firm of Ellen M. Seigerman in Parsippany and of counsel to the Law Firm of Joel R. Brandes, participates in the matrimonial early settlement panel program. Joel R. Brandes, a fellow of the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers, has law offices in Garden City, N.Y., and New York City.