MARRIAGE OF MINOR ‑- CUSTODY OF MOTHER ‑- PARENTS DIVORCED ‑- ISSUANCE OF LICENSE BY AUDITOR OVER OBJECTIONS OF MOTHER

MARRIAGE OF MINOR ‑- CUSTODY OF MOTHER ‑- PARENTS DIVORCED ‑- ISSUANCE OF LICENSE BY AUDITOR OVER OBJECTIONS OF MOTHER.

The person having the legal custody of the minor is the only person who may validly consent to the issuance of a marriage license for such minor.

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                                                                February 27, 1952

Honorable Charles O. Carroll
King County Prosecutor
County City Building
Seattle, Washington                                                                                                   Cite as:  AGO 51-53 No. 242

Dear Sir:

            This is to acknowledge your letter of November 9, 1951, in which you asked:

            "When a minor child of divorced parents, legally in the custody of themother by the terms of the decree of divorce, applies for a marriage license, is the auditor entitled to issue the license when consent required by RRS 8451 is supplied by thefather of said minor, over the objection of the mother."

            Our conclusion is that the person having the legal custody of the minor is the only person who may validly consent to the issuance of a marriage license for such minor.

                                                                     ANALYSIS

            Rem. Rev. Stat., § 8451 provides in part as follows:

             [[Orig. Op. Page 2]]

            "* * * Provided, that if the consent in writing is obtained of the father, mother, or legal guardian of the person for whom the license is required, the license may be granted in cases where the female is under the age of eighteen years or the male is under the age of twenty-one years:  * * * "

            From the above proviso it would appear that either the father, mother or legal guardian may give consent to the marriage of a minor for the purpose of securing a marriage license.  However, in our view, the proper construction of this proviso to the instant situation is that only the person legally having the custody and control of the minor may validly consent to the issuance of a marriage license.

            We feel that where a decree of divorce has divested the father of the custody of the minor, that thereafter the person to whom the child is awarded is the only one who has the right and power to give consent to the issuance of a marriage license.  The divorce decree in effect makes the mother, in this instance, the legal guardian of the minor.  In our view, any other construction would produce a result inconsistent with the divorce decree and give the father rights which the decree intended to dissolve.

Very truly yours,

SMITH TROY
Attorney General

DON CARY SMITH
Assistant Attorney General