Effective June 2, 2001, the Department of State, Bureau of Consular Affairs adopted a rule [FN1] amending Part 51 of Title 22 of the Code of Federal Regulations (CFR). [FN2] In enacting the rule, it sought to use the passport application process as a vehicle for deterring parental child abduction. As a consequence, passports are no longer issued for children who are the subject of a custody dispute or where there is joint custody, without the consent of both parents.

Title 22 CFR 51.27 (b) requires both parents or each of the child's legal guardians, to execute the passport application on behalf of a minor under age 14 under penalty of perjury, whether applying for a passport for the first time or for a renewal. In addition documentary evidence of parentage is required showing the minor's name, date and place of birth, and the names of the parent or parents. A person making false statements or providing fraudulent documents to procure a passport is subject to criminal penalties.

A passport application may be executed on behalf of a minor under age 14 by one parent or legal guardian only if that person provides documentary evidence that he or she is the sole parent or has sole custody of the child or if a written statement of consent from the non-applying parent or guardian is provided.

When both parents have abandoned the minor or are deceased and there has been no formal or legal determination of custody or guardianship (such as when a grandparent, aunt, uncle, brother or sister has assumed responsibility), documentation of legal custody or guardianship must be obtained and submitted. If exigent circumstances apply to a child in this situation, a passport would be issued without such documentation if failure to do so would cause grave danger to the child. Examples would include medical evacuation of a child from a foreign country to the United States or an emergency evacuation of U.S. citizens from a foreign country during a period of civil unrest.

An individual may apply in loco parentis on behalf of a minor under age 14 by submitting a notarized written statement or a notarized affidavit from both parents specifically authorizing the application. However, if only one parent provides the notarized written statement or notarized affidavit, documentary evidence that such parent has sole custody of the child must be presented. Examples of documentary evidence include, but are not limited to: a birth certificate providing the minor's name, date and place of birth and the name of the sole parent; a Consular Report of Birth Abroad of a Citizen of the United States of America (FS-240) or a Certification of Report of Birth of a United States Citizen (DS-1350) providing the minor's name, date and place of birth and the name of the sole custodial parent; an adoption decree showing only one adopting parent; an order granting sole custody to the applying parent or legal guardian and containing no travel restrictions inconsistent with issuance of the passport; a judicial declaration of incompetence of the non-applying parent; a court order of a court of competent jurisdiction specifically permitting the applying parent's or guardian's travel with the child; a death certificate for the non-applying parent; or a copy of a commitment order or comparable document for an incarcerated parent.

In cases of exigent or special circumstances, the written consent requirements may be waived by a senior passport adjudicator or the Deputy Assistant Secretary for Passport Services. For applications filed abroad, written consent requirements may be waived by the Deputy Assistant Secretary for Overseas Citizens Services. Exigent circumstances are defined as "time- sensitive" circumstances in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or would result in the child being separated from the rest of his or her traveling party. "Time-sensitive" generally means that there is not enough time before the minor's emergency travel to obtain either the required consent of both parents/guardians or documentation reflecting a sole parent's/guardian's custodial rights.