P 152249Z MAY 02
FM SECSTATE WASHDC
TO AMCONSUL PERTH PRIORITY
UNCLAS STATE 093216
Subject: legal interpretation of the two-parent
Consent requirement
1. This message responds to Perth's request for
Department guidance as stated in para 3 of ref(a).
2. CA/OCS/EAP conferred with CI and PRI on the legal
interpretation of the two-parent consent requirement.
The two-parent consent statute requires that "the
person executing the application must provide
documentary evidence that such person -(i) has sole
custody of the child." The parents in the case at
hand share joint custody; the mother has primary
physical custody, the father visitation. Primary
physical custody in a joint custody situation is not
the same as the statutory requirement of sole custody.
However, a court order permits the applying parent to
domicile the child in a foreign country.
3. Because the court order permits the mother to
travel and establish domicile with the child in a
foreign country, it comes within the purview of 22 CFR
51.27(iii)(f), which implements the two-parent
consent requirement and provides that documentary
evidence in support of a passport application may
include "an order of a court of competent jurisdiction
specifically permitting the applying parent's or
guardian's travel with the child." A court order
such as the one presented to post authorizing domicile
obviously authorizes the applying parent's travel with
the child. A narrow interpretation of 22 CFR 51.27 or
the statute's sole custody provision would cause great
hardship to amcit families overseas. Post may issue
the passport without the consent of the non-applying
parent under this section of the regulation, found at
paragraph 20 of 2001 State 107511.
Powell
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