Jeremy D. Morley
One of the best ways to prevent international child abduction is to maintain careful control over the child's passports.
On the other hand, it is often essential for left-behind parents to obtain new passports for children who have been abducted, especially if they want to bring them home directly.
Here is an overview of the fundamental rules.
The U.S State Department will normally not issue a new or replacement passport for a child to one parent without a notarized written statement or affidavit from the non-applying parent or legal guardian, if applicable, consenting to the issuance of the passport. However, the governing regulations also authorize the submission of a birth certificate providing the minor's name, date and place of birth, and the name of only the applying parent; a Consular Report of Birth Abroad of a Citizen of the United States of America or a Certification of Report of Birth of a United States Citizen providing the minor's name, date and place of birth, and the name of only the applying parent; a copy of the death certificate for the non-applying parent or legal guardian; or an adoption decree showing the name of only the applying parent.
A further exception is if there is an order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian; or an order of a court of competent jurisdiction terminating the parental rights of the non-applying parent or declaring the non-applying parent or legal guardian to be incompetent.
The Regulations expressly provide that an order of a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court, as appropriate. 22 C.F.R. §51.28.
Another exception is that a passport may be issued when only one parent, legal guardian, or person acting in loco parentis executes the application in cases of exigent or special family circumstances. 22 C.F.R. §51.28(a)(5). “Exigent circumstances” are 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. “Time sensitive” generally means that there is not enough time before the minor's emergency travel to obtain either the required consent of both parents/legal guardians or documentation reflecting a sole parent's/legal guardian's custody rights.
“Special family circumstances” are defined as 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; or, pursuant to guidance issued by the Department, 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. A limited administrative appeal may be brought against a refusal by the State Department to waive the two-parent requirement.
The U.S. State Department may refuse to issue a passport – except for direct return to the United States – if it “determines or is informed by a competent authority” that the applicant is a minor who has been abducted, wrongfully removed or retained in violation of a court order or decree and return to his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to determine custody matters.” 22 C.F.R. § 51.60 (e).