Family Law Questions? Ask a Family Lawyer Online.
As you know, the State Department requires both parents to either appear in person to apply for the certificate, or to file for certain paperwork to show their consent.
If your ex will not consent, you will need to file a motion in the court that originally decided your visitation (ie the court in New York) to have the Judge declare that you are the parent able to apply for a passport. Your argument is pretty strong if your ex hasn't ever exercised visitation. This is the only way you will get the State Department to issue your child a passport. When you file the motion, you will have to try to find him to have him served with notice of the motion and any hearings. If you don't know where he is, the court may appoint an attorney to try to find him, or the court may allow you to put a notice in a newspaper in the area he last lived. All these details will be dependent on the Judge in the court handling your case. Since you're out of state, it would be worth it to hire an attorney in NY to help you with this.