One common question we get at Meriwether & Tharp is, "how do I obtain a passport for my minor children after a divorce?" Typically, both parents need to consent when applying for a passport for their minor child/children. Usually, people are worried that their ex-spouse will refuse to consent to the passport application after a divorce. The other party may try to block the application out of spite or suspicion.
Generally, both parents must execute an application for a U.S. Passport for their minor children under the age of 16 (minor children 16 years of age or older may generally execute their own application for a U.S. Passport). This general law applies to both applications for a passport for the first time and for a renewal.
Could an Ex-Spouse Block Your Child's Application for a U.S. Passport?
Sometimes, obtaining the other parent's consent to submit an application for a U.S. Passport for your child under the age of 16 may be difficult. For example, there are situations where an ex-spouse refuses to execute an application for a U.S. Passport for the minor child despite the other ex-spouse's request. If both parents have joint legal custody of the minor child, then both parents' consent is generally required. If the other parent is withholding his or her consent without justification, you may need to file a petition with the court to obtain a court order giving you authority to apply for your minor child's U.S. Passport without the other parent's consent. Ansell v. Ansell, 328 Ga.App. 593 (2014). After you file your petition with the court, you will need to serve the other parent with your petition and present your case at a hearing on your petition.
If there is a court order (e.g., divorce decree) giving you sole legal custody of your minor child and there are no travel restrictions inconsistent with issuance of the passport for your child, then you could apply for a U.S. Passport for your child without the other parent's consent.
You May Not Need Consent if There Are "Exigent or Special Family Circumstances."
Another situation where a U.S. passport for a minor child may be issued without the other parent's consent involves "exigent or special family circumstances." 22 CFR 51.28(a)(5). These circumstances include an emergency where a minor child's health and safety or welfare would be jeopardized or the minor child would be separated from the rest of the child's traveling party if the minor child's passport cannot be obtained. Also, these circumstances include a situation where the minor child's family situation makes it exceptionally difficult for one or both of the parents to execute the passport application or return of the minor child to the U.S. is necessary to permit a court to adjudicate or enforce a custody determination regarding the child.
Written by: Daesik Shin