By Jeremy D. Morley

Can a parent who has obtained an order of sole custody of a U.S. citizen child from a foreign court obtain a U.S. passport for the child without notice to the other parent and without the consent of the other parent? My answer is that it depends on the circumstances but if handled correctly the answer is probably “yes.” 

The governing regulations provide that a passport may be issued to only one parent if that parent submits documentary evidence that “such person is the sole parent or has sole custody of the minor.” The regulations provide further that the necessary evidence can include an “order of a court of competent jurisdiction” that grants “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.”

So, what is a “court of competent jurisdiction”? The regulations state that, “The Department will consider a court of competent jurisdiction to be a U.S. state or federal court or a foreign court located in the minor's home state or place of habitual residence.” I read this to mean that the foreign court should generally have had jurisdiction within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act, i.e. that it was the child's “home state,” as that term is defined in the Uniform Act, at the relevant date, or alternatively had child custody jurisdiction under one of the other provisions of that Act.

Note, however, that another provision in the regulations states that the State Department “may require that conflicts regarding custody orders, whether domestic or foreign, be settled by the appropriate court before a passport may be issued.”