Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys

Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys

By Carolyn Alvarez

Family law attorneys are often asked to advise their clients about travel-related legal matters involving minor children. One frequently overlooked but critical consideration is the process for obtaining a U.S. passport for a child under the age of 16. This article outlines the legal framework, application procedures and practical considerations that attorneys must understand to guide clients through this process effectively.

I. Overview of Passport Requirements for Minors

Under U.S. law, all U.S. citizens, including minors, must present a valid U.S. passport to enter the United States by air, and in most cases, by land or sea as well. Unlike adults, minors under the age of 16 must apply for passports in person, and must satisfy additional parental consent requirements designed to protect against concerns like kidnapping, parental abduction, and unauthorized international travel. Pursuant to 22 C.F.R. § 51.4(b)(2), U.S. passports issued to minors under the age of 16 are valid for only up to five years, as compared with up to ten years for adult passports.

II. Regulatory Framework

The core regulatory provision governing passport applications for minors is 22 C.F.R. § 51.28, which outlines who must appear, who must sign the application, and under what circumstances exceptions may be made.  Importantly, 22 C.F.R. § 51.28(a)(1) requires that both parents or legal guardians must provide consent, unless certain exceptions apply. This policy reflects the U.S. Department of State’s commitment to preventing international child abduction under the Hague Abduction Convention and related domestic laws like the International Parental Kidnapping Crime Act of 1993, 18 U.S.C. § 1204.

III. Required Forms and Documentation

The passport application process for a minor child involves multiple forms and critical documentation. Attorneys assisting clients should be aware of the following critical forms and may consider referring to a specialist for any questions.

A. Form DS-11 – Application for a U.S. Passport

Form DS-11 is the application form used for first-time passport applicants, including minors, as well as for the renewal of passports for minors. Importantly, it must not be signed until submitted in person at an authorized acceptance facility or U.S. passport agency. Additionally, the minor child must appear in person with both parents (or legal guardians) to submit this form, with few exceptions described further below.  In addition to the completed form, the application must include[1]:

    • Proof of the minor’s U.S. citizenship (e.g., certified birth certificate, naturalization certificate, or prior passport)
    • Evidence of parental relationship (e.g., birth certificate naming both parents, adoption decree, or court order)
    • Valid identification for both parents and photocopies of their IDs (front and back)
    • Passport photo meeting Department of State specifications[2]

B. Form DS-3053 – Statement of Consent

If only one parent is available to appear for the passport application, the absent parent must submit a notarized Form DS-3053, which gives written consent for the minor’s U.S. passport’s issuance. This form must include a notarized[3] signature from the non-appearing parent and is valid for only 90 days from date of execution[4].  This form is critical in shared custody cases where both parents retain legal rights.

C. Form DS-5525 – Statement of Exigent/Special Family Circumstances

If one parent cannot be located or refuses consent, the applying parent must complete Form DS-5525, explaining the circumstances in detail[5]. Supporting evidence may include restraining orders, incarceration records, and affidavits describing abandonment or inability to contact the other parent. The Department of State may issue a passport under these circumstances if it deems the explanation sufficient, but the validity period may be limited.

IV. Exceptions to the Two-Parent Consent Requirement

While the two-parent rule is the default, 22 C.F.R. § 51.28(a) outlines several exceptions:

A. Sole Legal Custody

Under 22 C.F.R. § 51.28(a)(3), a parent may apply without the other’s consent if they demonstrate sole legal custody through 1) a court order granting sole legal custody, 2) an adoption decree listing only one parent, 3) a judicial declaration of incompetence of the other parent, or 4) the death certificate of the non-applying parent. Supporting evidence (e.g., a certified copy of the order or decree) must be presented with the passport application.

B. In Loco Parentis

Under 22 C.F.R. § 51.28(a)(4), a person standing in loco parentis (e.g., guardian, grandparent, stepparent) may apply if both parents or guardians have executed a notarized affidavit authorizing the third party to do so. If only one parent provides authorization, the applicant must provide documentary evidence that an application may be made by one parent or legal guardian (i.e., the standard rule for sole custody or DS-3053 requirements would apply).

C. Exigent/Special Family Circumstances

Finally, under 22 C.F.R. § 51.28(a)(35), a passport may be issued when only one parent, legal guardian or person acting in loco parentis executes the application, in cases of exigent or special family circumstances. These cases are evaluated on a discretionary basis and often involve urgent travel for medical treatment, court-ordered returns, or threats to the child’s welfare. The applying parent must submit a written statement with the application describing the circumstances he or she believes should be taken into consideration in applying an exception.

V. Common Legal Issues in Family Law Context

Family law attorneys must be vigilant in navigating custody arrangements and court orders that may impact U.S. passport applications for minors. Key considerations include:

A. Court Orders Restricting Travel

Many divorce or custody agreements restrict international travel or require court permission to obtain a passport. Attorneys may consider advising clients to secure a specific court order allowing passport issuance and international travel when possible.

B. Disputes Between Parents

Where one parent refuses to cooperate, the other may need to pursue judicial intervention. Courts can order passport issuance or delegate authority to one parent under specific conditions. Accordingly, attorneys may wish to seek a court order to grant one parent sole authority to apply for and hold the child’s passport and clearly override any prior agreements restricting such authority.

C. Hague Convention Considerations

In cases involving concerns over international abduction, attorneys should assess whether safeguards such as travel bonds, court orders requiring passport surrender, or supervised visitation may mitigate risks. Additionally, clients should be informed of the Children’s Passport Issuance Alert Program (CPIAP), which allows the Department of State to notify a parent when a passport application is submitted for a registered minor[6].

V. Conclusion

Applying for a U.S. passport for a minor under the age of 16 involves not only procedural compliance but also careful legal analysis of custody rights, parental consent, and documentation. Attorneys therefore play a crucial role in advising clients on how to navigate this process in compliance with federal law and applicable court orders and should adopt a proactive and detailed approach to avoid delays and ensure compliance with legal requirements. Attorneys should begin by carefully reviewing all custody agreements to confirm whether they authorize one or both parents to apply for a passport. When involved in negotiating custody orders, attorneys should advocate for clear and explicit language regarding passport applications and international travel, when such provisions serve the child’s best interests. Finally, attorneys should educate clients on relevant procedural details, including the fact that minor passports are valid for only five years and that renewals before age 16 typically require signatures from both parents. By understanding the framework and anticipating common obstacles, and knowing when to seek guidance from a specialist, attorneys can help protect their clients’ rights and ensure their children can travel safely and legally.

[1] See https://travel.state.gov/content/travel/en/passports/need-passport/under-16.html

[2] See https://travel.state.gov/content/travel/en/passports/how-apply/photos.html

[3] In certain countries, a DS-3053 cannot be notarized by a local notary public and must be notarized at a U.S. embassy or consulate. See https://travel.state.gov/content/travel/en/passports/need-passport/under-16.html.

[4] See https://eforms.state.gov/Forms/ds3053.pdf

[5] See https://eforms.state.gov/Forms/ds5525.pdf

[6] See https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/prevention/passport-issuance-alert-program.html

Carolyn Alvarez is a Senior Associate at Fragomen in New York, where she provides immigration services to individuals and multinational corporate clients across a variety of industries.  She is the immediate past Chair of the New York Chapter of the American Immigration Lawyers Association.



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