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jns609 · Sep 26, 2011, 06:34 AM

My husband has physical custody of his 4 year old daughter. He and his ex-wife have joint legal. My husband has orders to go to Germany for 3 years, but the mother is not willing to sign the papers for the child to receive a passport. Is there anything that can be done to force the mother to cooperate?
(State: California)

Fr_Chuck · Sep 26, 2011, 09:00 AM

You can go to court and try to force it, but such a move could stop the non custody parent from visiting, so plans for extended visits, for the custody parent to pay for the travel may have to be offered.

If this will stop visits, the non custody parent could even stop the children from moving out of state.

There is more to this than passport ( with what you provided us) not only do they not have to agree to passport, but have to agree to allow them to move out of state if they all live in the same state now.

jns609 · Sep 26, 2011, 09:44 AM

Thank you Father Chuck, your information was helpful. The order that they currently have in place does not mention visitation at all. So I am guessing it is assumed as open visitation? I'm not sure. But all the order states is that the father has physical custody and the mother has joint legal custody with him. I do not know if this will make the situation any easier, but if my husband has military orders to leave the country there is nothing that can be done about that. He is not able to get out of the mission. The mother on the other hand is not employed right now and is having a hard enough time supporting herself, so there will be no way that she can care for the child. So there is no option but the child to relocate as well. I suppose we will have to contact the court and find out what the process would be.

AK lawyer · Sep 26, 2011, 10:09 AM

Originally Posted by Fr_Chuck

...
If this will stop visits, the non custody parent could even stop the children from moving out of state. ...

If the father has sole physical custody, and it appears that he does, it follows that the mother has no visitation rights which would be impaired. So the only problem is getting a passport. I would check with the passport agency about getting the passport without the mother's consent. As I recall, there are some exceptions to the requirement that both parents sign the passport application.

A form DS-3053 can be submitted, with a showing of the "special circumstances" under which the non-custodial parent has refused to agree.

But, as Fr_Chuck suggests, it would probably be best to file a motion with the court which originally issued the custody order.

Fr_Chuck · Sep 26, 2011, 10:14 AM

I see mention of joint legal, and sole custody does not mean there is no visiation, But if there is no visitation listed in the custody order, it may appear the non custodial parent has never asked for any. Again, it is better not to assume than get in Germany and be served with a order to appear back in court where the non custodial parent has filed.

AK lawyer · Sep 26, 2011, 10:27 AM

Originally Posted by Fr_Chuck

I see mention of joint legal, and sole custody does not mean there is no visiation, But if there is no visitation listed in the custody order, it may appear the non custodial parent has never asked for any. Again, it is better not to assume than get in Germany and be served with a order to appear back in court where the non custodial parent has filed.

If the custody order doesn't mention visitation, the mother doesn't have any right to visitation. Obviously the parties may have intended that visitation be at the father's discretion, but it's slipshod work for the court to have failed to mention it.

If the mother has shared "legal custody", and the parents cannot agree on a "legal custody" issue, it normally would have to be decided by the court.

cdad · Sep 26, 2011, 12:58 PM

Originally Posted by AK lawyer

If the father has sole physical custody, and it appears that he does, it follows that the mother has no visitation rights which would be impaired. So the only problem is getting a passport. I would check with the passport agency about getting the passport without the mother's consent. As I recall, there are some exceptions to the requirement that both parents sign the passport application.

A form DS-3053 can be submitted, with a showing of the "special circumstances" under which the non-custodial parent has refused to agree.

The form doesn't state anything about not agreeing. It states about the other parent being missing from the situation. If the other parent is known and refuses to sign then a judge can sign in their place.

Complete item 5, Statement of Special Circumstances, only if you are an applying parent or guardian and the written consent of the non-applying parent or guardian cannot be obtained. The statement must explain in detail the non-applying parent's unavailability and recent efforts made to contact the non-applying parent.

jns609 · Sep 28, 2011, 10:40 AM

Would anyone know whether the courts will hurry along a situation like this, which is time sensative? I have emailed the passport aureau asking them the same question, so I will wait for their response. In the meantime would any of you advise getting the courts involved, or should I just wait to see what the passport agency is able to do for us first?
As far as the visitation, the mother did not ask for anything at the time of the order. When my husband was deployed last year, the child still was not in her custody (before we married). My husband had given guardianship to his aunt and uncle for that year because the mother has not been financially stable enough to care for the child. I wonder if this is all things that the judge will take into consideration? If the mother is unable to financially care for the child and my husband's mission with the Army is not optional, then clearly the child must go as well.
Thank you gentlemen for all of your helpful responses.