RESOURCES | We’ve pulled together these resources to help clarify common family law matters and we’re here to answer any questions you may have during what we know can be an emotionally overwhelming time.

Summertime Blues or Summertime Cruise?
by Charla Bradshaw

We’ve all heard the Alan Jackson song “Summertime Blues”: “Sometimes I wonder what I’m a gonna do, but there ain’t no cure for the summertime blues”. Nor is there a cure for a difficult ex-spouse! A difficult ex-spouse can make it impossible for a divorced parent to travel with their child. This is because the other parent’s consent is necessary to obtain or renew a passport for a child or for a child to travel out of the country. If the proper provisions for obtaining a passport for a child and for a child to travel out of the country are not in the court order, then a difficult ex-spouse can prevent the child from traveling.

Some divorced parents can be difficult for the sake of being difficult and unfortunately, passports and travel are an area where we see it a lot. Such difficult parents usually do not have a legitimate reason for preventing the travel and do so to get back at the other parent. Unfortunately, many final custody orders do not contain provisions regarding obtaining a passport for a child or consent to travel out of the country. The rules for obtaining a passport for a child and for a child to travel out of the country have become very strict.

In order to obtain court ordered provisions for passports and out-of-the-country travel, this will require the traveling parent to return to court to obtain such orders. Unless there are strong reasons why a child should not travel out of the country, for example medical reasons, dangerous travel conditions, etc. the courts will more than likely issue orders to obtain a passport and allow the child to travel out of the country.

Minors under the age of 16 cannot apply for a passport by themselves. Both parents/guardians must appear in person with the minor and provide consent, authorizing passport issuance to the minor. If one parent/guardian is unable to appear in person, then the DS-11 application must be accompanied by a signed, notarized “Form DS-3053: Statement of Consent” from the non-applying parent/guardian.

If the minor only has one parent/guardian, evidence of sole authority to apply for the minor must be submitted with the application in the form of a:

  • U.S. or foreign birth certificate, Consular Report of Birth Abroad, or adoption decree, listing only the applying parent
  • Court order granting sole legal custody to the applying parent (unless the child’s travel is restricted by that order)
  • Court order specifically permitting applying parent’s travel with the child
  • Judicial declaration of incompetence of the non-applying parent
  • Death certificate of the non-applying parent

“Sole legal custody” is one of the requirements for a parent to obtain a passport without the other parent’s consent, however most custody orders do not contain sole legal custody, but rather joint custody (termed “joint conservatorship” in Texas). Unless the order says “sole managing conservatorship” then the traveling parent will not be able to obtain a passport without the other parent’s consent.

In addition, many airlines require a “Letter of Consent” to be signed by the other parent no matter what the court orders say. Part of the court’s order would require a parent to sign such a letter. Even if the traveling parent has a passport for the child, most airlines still require this letter. When a mother’s name is not the same as their child’s name, this can cause extra problems at the airport. Any divorcing mother desiring to change her name should consider making the child’s last name their middle name if they ever plan to travel out of the country with their child. The laws are becoming stricter and it is uncertain what the future holds in this regard.

Any divorced parent desiring to travel out of the country with a child needs to ask for passport and travel orders in their final orders. And, any parent desiring to travel should ask the other parent in plenty of time in case they need to return to court to obtain such passport and travel orders. Acting early can lead to the Summertime Cruise rather than the Summertime Blues!