How to get a child passport with one parent absent​?The application for or change of a passport for a minor under the age of 16 requires the unanimous consent of all joint guardians. If the family situation is complicated and one parent is not present, there will be many specialized and complex legal issues involved.

As of February 1, 2008, U.S. law requires that for children under the age of 16, both parents must be present with the passport applicant and co-sign the application form to signify their express consent to the issuance of a passport. The rationale behind this law is that in general, absent a specific court order, both parents have Joint legal custody of a minor under the age of 16. At this point, we need to clarify two very confusing concepts. In U.S. law, legal custody, similar to the Chinese term guardianship, refers to the legal right of parents to make decisions about the health, education, and welfare of their minor children. Physical custody, we often say custody, that is, the minor child with whom the right to live, by whom the right to care for the Legal Custody and Physical Custody and each have Joint and Sole points. It is important to emphasize that the issuance of a U.S. passport for a minor requires the unanimous consent of the parent with Legal custody.

Let's analyze what conditions need to be met in order for a child to be issued a passport with only one parent present if one parent is unavailable.

First, one of the custodial parents is unable to be present, but is willing to sign a written consent form DS-3053 “Statement of Consent” in order to fulfill the requirement of unanimous consent of the joint custodial parent.

The unavailable party will need to bring identification to sign the Form DS-3053 in the presence of a Certified Notary Public, and the signed Form DS-3053 and a copy of the front and back of the signer's identification will need to be submitted with the child's passport application. If applying at a U.S. Embassy/Consulate abroad, provide a notarized Power of Attorney DS-3053 in English. This authorization can be notarized in advance at no cost at the U.S. Embassy/Consulate. The authorization is valid for three months from the date it is signed.

Second, if the parent present at the application has Sole Legal Custody, the consent of the other parent is not required.

Evidence that proves full custody of the child can be 

1) A complete court judgment finding that the parent accompanying the passport application has full custody of the child, such as a divorce decree or other custody order judgment. For legal information and the process of applying to the court for a full custody judgment, please refer to the official California court website: https://www.courts.ca.gov/15870.htm

It is important to emphasize that a U.S. court judgment or Chinese divorce decree stating that only one parent has custody does not equate to sole physical custody ≠ sole legal custody.

1) A complete court judgment that a parent has the privilege of applying for a passport for a minor child.

2) A copy of the child's birth certificate listing only one parent's name

3) A court judgment of adoption listing the name of one parent only

4) Judicial report certifying the incapacity of the absent parent

5) Death certificate of the absent parent

Third, there is no communication with the other guardian and his/her written consent cannot be obtained.

In extreme cases, try filing Form DS-5525 “Statement of Exigent/Special Family Circumstances”.

Before completing the form, we recommend that you keep a detailed record of when, how, and with what results each contact was made, and retain as much evidence as possible. In addition, you must demonstrate that there is an objective emergency or special family situation that prevents you from obtaining the written consent of one of the co-guardians.

-If there is a statute of limitations-sensitive emergency and the minor's inability to obtain a passport would jeopardize his or her health, safety, or welfare, or would result in the separation of the minor from the adults traveling with him or her, your request will likely be considered an emergency.

- If the minor's family situation makes it extremely difficult or impossible to obtain written consent from a guardian of one of the parties, your request will likely be considered an extraordinary family situation.

Please note that completion of this form does not guarantee the issuance of a passport.

Minors under the age of 16 require the unanimous consent of all joint guardians to apply for or replace a U.S. passport. If the family situation is complicated and one guardian is unavailable, there are many specialized and complex legal issues involved. If you have questions about this, please contact the Law Offices of Dachin Zhang for professional legal advice and assistance.