Passport Consent - Issues for Divorced Parents

Does a non-custodial parent have to sign a passport consent form before a child can leave the country? If you are a divorced parent, you need to be aware that there are specific rules regarding passports for children who come from divorced families.

According to the US Department of State, under Public Law 106-113, Section 236, both parents must give their consent before a passport will be issued for any minor children under the age of 16. The Bureau of Consular Affairs provides more information for parents about the Two-Parent Consent Requirement.

Below you will find answers to the most frequently asked questions concerning custody and passport consent issues:

Can I get a passport for my kids without their father's consent?

Christina's Question: I was awarded temporary custody until our next court date. Will I be able to get a passport for my son without my ex's consent? I may be traveling soon, my lawyer isn't sure if the laws have changed. Can you let me know if there is a web address I can read about my rights with temporary custody?

Brette's Answer: Generally, you need permission of the court to leave the country during a custody case. As for obtaining a passport, you can check the regulations on the US Department of State web site (please refer to Special Requirements for Children under Age 16 for more information).

What if I can't locate him to get his consent for the passport?

Heather's Question: In the future I'd like to have a passport for my 7 year old son. I have been trying to reach his father by phone, without any luck. They are unable to serve him papers for child support, so how am I supposed to get him served for the passport consent? Can I do this without his consent if I can't even get a hold of him?

Brette's Answer: If you have a custody order stating you have sole legal custody that should be enough to allow you to sign the application alone.  If that is not accepted then you can complete Form DS 5525 which says you can't contact the other parent.

What if the passport was denied even though I have sole custody?

Rita's Question: I have sole managing conservatorship over my daughter in the state of Texas. I hadn't been able to get a hold of my ex-husband for weeks but needed to get my child's passport renewed. The local passport office told me I didn't need my ex-husband’s consent to get my child's passport because I have sole managing conservatorship, better known as sole/full custody of our child. 3 weeks later, I received an email from the national passport center stating that my daughter's passport application was suspended because my ex didn't sign the application. I was told I didn't need my ex's consent if my divorce paperwork states I have full custody. I explained that it did, but it says sole managing conservatorship because (that's the legal term used in Texas). The rep said unless the documents say full custody, I need my ex's consent. I've not been able to get a hold of him to fill out the form. What do I do now?

Brette's Answer: You can return to the court that issued the custody order and request that the court order that the passport be authorized without your ex. Talk to an attorney.

Can I get my kids passports if we agreed no consent was needed?

Question: We share joint legal custody, but I have sole physical custody of my 2 kids. On our physical custody papers, we both agreed not to require each other's consent when taking the kids outside the country. Is this good enough for me to get my kids their passports?

Brette's Answer: No, that's a whole separate matter governed by federal requirements.

Is sole custody needed to get a child's passport without his permission?

Toyin's Question: Will I have to get sole custody due to the fact that my ex doesn't want me to get our daughter a passport? She lives with me 100% and I support her individually, 100%.

Brette's Answer: I recently wrote about this issue. You can find the answers here: https://www.womansdivorce.com/passport-after-divorce.html. Generally, unless you have sole legal custody, you'll need the signatures of both parents to get a passport.

Can I get a passport for my child if custody has never been determined?

Kim's Question: The noncustodial parent has not paid child support nor have we had any contact with him in years. I provided proof of nonpayment of support and explained to the passport agency that I am her sole provider. What else can I do since I don't have anything other than child support legally stating my position? 

Brette's Answer: If your child has a father listed on the birth certificate, he either has to sign the passport application or you need to provide a copy of a court order stating you have sole custody. To obtain custody you need to file for custody in family court. If he does not respond or appear you will automatically be given an order of sole custody. You can also ask for their assistance in getting the passport issued. They can compel your ex to sign the form or bypass him if he can't be reached. If he appears or contests it, then you will need to work through mediation or the court system to reach an agreement.

Will a paternity affidavit prove I have sole custody so I can renew my son's passport?

Amy's Question: I am not legally married to my son's father, so would a paternity affidavit form from the hospital where my son was born be enough to show that I have sole custody and renew my son's passport?

Brette's Answer: No. If the other parent has been identified as a legal parent, you need both parents to sign for a passport.

Can he make me sign passport papers if I have sole custody?

Shauntae's Question: I was granted sole legal custody of my two children. He is from another country, and I'm afraid that in the future he will want me to sign a passport for one of the children. I am against this! Can he make me sign passport papers? I must also mention he won't tell me where he lives and lies about living in three different places.

Brette: If you have sole legal custody, no one is going to make you sign a passport application unless you have control of it. A court is certainly not going to allow him to take your children out of the country if he won't even tell you where he lives.

Will this parenting plan provision force me to consent to a passport application?

Yolanda's Question: According to my divorce paperwork, both ex-husband and I have to give 6 days’ notice for out of state trips and 30 days’ notice for out of country. No language was written about obtaining passports in our divorce. Does this force me to sign off on a passport application for our only child?

Brette's Answer: That language specifically does not, but if you won't sign your ex can petition the court to force you to. And since your order allows out of the country travel, it's likely the judge would require it.

Can the court order me to sign for passports for my children?

Stacy's Question: Does a court have the right to order me to sign for passports for my children (ages 10 & 12)? My ex-husband from a bad divorce is demanding from the court that I sign to let my 2 children get passports. I am so scared he will take them out of the country and not return.

Brette's Answer: Yes, the court can order you to sign a passport application. You can of course contest it and offer reasons why you believe it is dangerous. I suggest you talk to your attorney about your concerns.

Can I deny the passport so he can't take our son to Puerto Rico?

Jeanie's Question: My ex-husband has gotten remarried to someone from Puerto Rico and they are planning to go there over Christmas vacation to visit her family. We have joint custody with me being primary custodial parent and he does have him every other weekend. I know you have to have a passport to go, there but can I deny him from going?

Brette's Answer: You don't need a passport to go to Puerto Rico since it is a commonwealth of the US. If your custody order does not permit him to take the child out of the state, then it is an issue. If there is no restriction, does your ex have the right to more than a weekend, such as vacation weeks or school holidays? If so, it sounds like this fits within your order. If you have a problem with his plans, you can go to court to seek modification of your order.

Would the court make him sign the consent form for a short trip?

Erin's Question: I am planning a destination wedding in the Dominican Republic. My ex lives out of state and sees our kids 2-3 times a year. Our divorce decree doesn't state whether there is sole custody or joint custody. I have residential custody and decision making. He is unwilling to sign the passport consent for the kids? If I take him to court will they make him sign it?

Brette's Answer: The judge can bypass his signature, or make him sign.

What if my ex won't sign the passport consent application so I can move?

Jamica's Question: I asked my ex to sign an application so that I can get our daughter a passport because I was thinking about taking a job overseas. I want to take my children with me if I accept the position. Well, he is very angry and will not sign the passport consent application so that I can obtain this document. I have been raising her for 8 years with no support from him. Is there anything I can do legally?

Brette's Answer: File a petition with the court asking him to be ordered to sign it. If he has visitation he can challenge your plan to leave the country however. Good luck.

Can I replace my kids passports if he won't give me the originals?

Lisa's Question: My ex will not relinquish our children's passports since he paid the fees for them. Can I just have these replaced or do I need the originals?

Brette's Answer: They won't replace them. You need to get the court to order your ex to hand them over.

Which parent is the owner of the child's passport?

Joanne's Question: Lisa wrote that her ex won't relinquish her kids' passports since he paid for them. My question is: By law, which parent is the owner of the child's passport? Is it determined by who paid for the passport or who is holding it at present?

Brette's Answer: Neither parent "owns" a child's passport. It is a government document. If both parents have legal custody of the child they would both have access to it. Whether or not the child can travel out of the country with a parent depends on the custody order. Some orders require parents to give notice or get permission. Others forbid a parent from taking the child out of the jurisdiction. 

His ex-wife signed the DS-11 form but won't send a copy of her ID.

Karen's Question: We've planned a family vacation to Mexico and my husband has primary custody of his son. He contacted his ex-wife and she signed the DS-11 form and had it notarized, but refuses to send us a copy of her ID. The passport office will not accept the application without her ID. Is there any way around the ID issue? What are our options, if any?

Brette's Answer: The only other choice is to get a court order.

Can he get passports for the kids without my consent?

Joann's Question: I am the sole managing conservator, and my ex has the standard visitation rights. However, he has never exercised his rights, including extended summer visitation. Since he has never used his visitation, we planned and purchased air tickets and tour packages abroad for this summer. Now my ex is wanting to exercise his visitation rights and take the kids during our planned vacation time and told me that he will bring the kids abroad himself. Can I stop him from taking the kids abroad during his visitation? Can I not surrender my children's passports to him? Can he apply for lost/stolen passports and get new ones for my kids without my consent? What options do we have?

Brette's Answer: Since he has never used his visitation in the past, you can ask for a modification since you already made plans. I think a court would find it reasonable to change the dates of the access. You can ask that he not be permitted to take them out of the country if you have concerns. He cannot obtain a passport if they already have one and you do not sign off.

Note: The Children's Passport Issuance Alert Program allows parents to have their minor children's names entered into the U.S. passport name-check system. To be accepted into the program the request must be written and signed. After acceptance into the system, the parent will be notified if someone else applies for a passport for the child, giving that parent the opportunity to object to the issuance of the passport. To find out more, visit the Office of Children's Issues website.

Can a passport be flagged so the child can't be taken out of the country?

Sheila's Question: My husband got sole custody of his 7 year old daughter 1.5 years ago. The ex's family goes abroad and he is worried they will take his daughter out of the country. If his daughter already has a passport (from when she was with her mom) can it be flagged or revoked now that custody has changed hands?

Brette's Answer: The passport can be placed in the custody of the court or in your husband's custody. © WomansDivorce.com

About Brette Sember - Legal Expert

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