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Passports and Child Custody

February 5, 2015

For divorced parents, traveling with minor children can be a challenge. In Florida, parents are generally permitted to travel with their children during the times when they have regularly scheduled physical custody or visitation rights. However, things become more complicated if a divorced parent wants to take a child out of the country.

Minors under the age of sixteen must comply with certain requirements when applying for a passport. They must apply in person and must be accompanied by both parents or guardians, along with evidence of the parental relationship. This applies to divorced parents as well as parents who are married or who have never been married. These requirements are designed to fight child abduction and child trafficking. However, not all children have two parents available to accompany the child to apply for a passport, so the State Department has made other procedures available in certain circumstances.

One Parent Cannot Appear

If one parent is not available to appear, a minor under sixteen can apply for the passport by appearing with one parent and bringing Form DS-3053: Statement of Consent. This form must be signed by the non-appearing parent and must be notarized.

Sole Custody of the Child

If one parent or guardian has full custody of the child, the other parent’s permission is not necessary. However, the custodial parent must prove that he or she has sole custody by submitting one of the following documents along with the application:

  • Birth certificate or adoption decree naming only one parent,
  • Court order granting sole legal custody to the applying parent,
  • Court order specifically granting permission to the applying parent to travel with the child,
  • Judicial declaration of incompetence for the non-applying parent, or
  • Death certificate of the non-applying parent.

One Parent Cannot Be Located

If one custodial parent cannot be found or will not respond to requests to either appear at the application or sign Form DS-3503, there are two main options: Form DS-5525 or application for a new court order. Form DS-5525: Statement of Exigent/Special Family Circumstances is to be used only when the written consent of the non-applying parent cannot be obtained. The form includes a statement explaining why the non-applying parent is unavailable to consent, and must describe efforts made to contact the parent regarding the passport application. The applying parent may have to provide evidence of the other parent’s absence, such as a custody order, incarceration order, or restraining order, to substantiate the claim of special circumstances. But this method generally will not work if the other parent simply will not cooperate or will not respond to requests to allow the child to obtain a passport.

Another option is to seek a court order specifically allowing one parent to apply for a passport without the other parent’s consent. Then the applying parent would submit that court order along with the child’s passport application. This, however, can be a lengthy process.

Both Parents Unavailable

If neither parent nor guardian is available, a third party may apply for the passport on behalf of the minor. The application must be accompanied by a signed, notarized affidavit from both parents authorizing the third party to apply for the passport on the child’s behalf. The affidavit must be accompanied by photocopies of the parents’ identification. If only one parent has custody, the affidavit need only be from one parent and must be accompanied by evidence of sole custody.

If you want to apply for a passport for a minor child under the age of sixteen and are having trouble obtaining the cooperation of the child’s other parent, the services of an experienced family law attorney can make the process much easier. Please contact West Palm Beach family law attorney William Wallshein for a free initial consultation.

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