Passport Issues in a Child Custody Case

By: Jessica A. Bryant

One area of dispute that can arise following a divorce or custody action is the question of obtaining a passport for the child. To get a passport for a child under 16, the State Department generally requires signatures from both of the parents or legal guardians. This requirement is the same even if the application is just for a renewal passport. There are a few exceptions to this requirement, though, which are as follows:

1. The State Department will allow a passport application to be signed by only one parent if any of the following documentation can be provided:

a. A written, signed and notarized statement from the non-applying parent, or an affidavit from such parent, agreeing that the passport may be issued;

b. Documentation showing the requesting parent is the sole parent or has sole custody- acceptable documentation includes the following:

• The child’s birth certificate with only the applying parent’s name;
• A Consular Report of Birth Abroad of a Citizen of the United States or a Certification of Report of Birth of a United States Citizen for the child with only the applying parent’s name;
• A copy of the other parent’s death certificate;
• An adoption decree with only the applying parent’s name;
• A court order granting sole legal custody to the applying parent with no restrictions on travel or passport issues;
• A court order specifically authorizing the applying parent to obtain a passport for the child, regardless of custody;
• A court order specifically authorizing the travel of the child with the applying parent;
• A court order terminating the other parent’s rights or declaring the other parent to be incompetent;

While these are the only document examples given by the law, it is possible there are other types of documents that may be accepted. If you are in the middle of a Denver child custody or divorce proceeding, though, and know you will need or want a passport for the child, it is advised that you request orders that mirror the language contained herein to avoid uncertainty as to whether your particular order will be accepted by the State Department.

1. Exigent or special family circumstances. The State Department can issue a passport for a child under 16 with only one parent’s signature if it can be shown that either denying the passport would jeopardize the child’s health, safety and/or welfare, could result in the child being separated from the rest of the traveling party, that special circumstances make it exceptionally difficult to get the other parent’s signature, or compelling humanitarian reasons compel the issuance of a passport. Generally, in my experience, simply showing the State Department that the other parent is hard to communicate with, difficult, disagreeable, etc., is not sufficient to meet the requirement of proving that it is “exceptionally” difficult to get his/her signature.

So how does this apply to Colorado cases when Colorado courts do not issue orders specifically referring to “custody?” Generally, if your Colorado orders give you and the other parent “joint decision making responsibility” the State Department will require signatures from both parents before issuing a passport unless there are specific provisions in the order allowing one parent to obtain a passport without the need for the other parent’s signature. Additionally, even though one of the documents listed above as allowing only one parent to obtain the passport is a “court order specifically authorizing the travel of the child with the applying parent,” generally, in my experience, the State Department will not simply accept an order allowing either parent to travel with the child as sufficient for that parent to obtain the child’s passport without the other parent’s signature.

If you are in the process of obtaining initial custody orders, and know you will be travelling with the minor child out of the country at some point and/or need or want a passport for the child, and the other parent is refusing to cooperate, it is advisable that you seek specific orders regarding the passport issue in order to avoid having to return to court on that issue. If you are travelling to a country that is not a party to the Hague Convention, the court may have some concerns about such travel that you will have to overcome as United States custody orders are nearly impossible to enforce in such countries. If you already have your custody orders and are facing disagreement from the other party regarding obtaining a passport for the minor child, you can file a motion with the court requesting such party either be required to sign the passport application or an order specifically authorizing you to request a passport without the other parent’s signature. In my experience, courts are generally inclined to enter such orders, unless there is a specific, proven reason for concern about the child traveling internationally.