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3.Department of State telegram re exception to two-parent requirement for child's passport where court order (May 15, 2002)


P 152249Z MAY 02







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.







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