Parents of children who are abducted to a foreign country, or who are being retained in a foreign country, often do not have their children's passports that are needed to enable them to bring the children back to the United States.

As part of our work in helping parents to get their kids back home, we are often required to assist such parents in the process of obtaining a new U.S. passport for the children.  

It frequently happens that the passports are being held by the other parent. U.S. law basically provides that either parent, whether a U.S. citizen or not, may apply for a U.S. passport on behalf of a minor child and that the minor must appear in person when applying for the passport, but the so-called “Two-Parent Consent Law” also requires that both parents have consented to the passport application.

One of the exceptions to this rule is the provision that a passport may be issued when only one parent executes the application, in cases of “exigent or special family circumstances.”

The key term of “exigent family circumstances is defined as “time-sensitive circumstances in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or would result in the minor being separated from the rest of his or her traveling party.”

The term “time sensitive” is then defined to generally mean that there is not enough time before the minor's emergency travel to obtain either the required consent of both parents (or legal guardians) or documentation reflecting a sole parent's or legal guardian's custody rights.

The alternative key term of “special family circumstances” comprises:

• circumstances in which the minor's family situation makes it exceptionally difficult for one or both of the parents to execute the passport application; and / or
• compelling humanitarian circumstances where the minor's lack of a passport would jeopardize the health, safety, or welfare of the minor; and / or
• circumstances in which return of a minor to the jurisdiction of his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to adjudicate or enforce a custody determination.

The applicable law also provides that a passport issued due to such special family circumstances may be limited for direct return to the United States.

* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He may be reached at +1- 212-372-3425 and through his website, www.international-divorce.com. Jeremy has handled hundreds of child custody and abduction cases and has written the leading treatises on international family law.