If both parents have joint legal custody, then both parents must consent to take a child out of the country. A parent with sole legal custody can take a child out of the country; however, the parent who objects to taking the child out of the country can prevent it by showing probable harm to the child.
Author: Brad Nakase, Attorney
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Parents are often concerned that the ex-spouse will not oblige to the court order or custody agreement while the children are abroad. Parents who have sole legal custody of a child are permitted to travel internationally with their child without the other parent’s consent. However, if there is a high risk that the parent with sole legal custody permanently removes the child from the United States, you should get a court order to prevent it.
When a couple with children divorces, complications may arise when one party wishes to travel or move abroad. Much depends on the specific custody agreement negotiated at the time of the divorce. Often, ex-spouses with a custody arrangement must take certain steps prior to taking a child abroad, even for short trips such as vacations.
If a parent shares custody of a child, he or she has the right to oppose major decisions such as the child leaving the country with the other parent. Sometimes, custody agreements may object to international travel or relocation without the consent of both parents. If a parent with partial custody attempts to take a child out of the country, violating the custody agreement, the other parent may file a court order. The courts may confiscate the child’s passport to prevent abduction.
However, if a parent has full custody of a child, he or she may be able to make major decisions on behalf of the child without the other parent’s permission.
Under California law, a parent with sole physical and legal custody of their child can change their residence. If both parents have legal and physical control, a parent can only move a certain distance away without the other parent’s written agreement that the court agrees.
California Family Code section 7501 subsection (a) states: “A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”
If a parent with shared custody can prove that taking his or her child abroad is in the best interests of the child, the move may be permitted, even with the opposition of the other parent.
If a parent has full custody of a child and wishes to travel abroad, the other parent has limited options. In order to prevent the travel, he or she must prove that the move is harmful to the child. In all cases, the best interest of the child reigns supreme.
Under United States federal law, both parents must sign their child’s passport if the child is younger than 16. Without one parent’s consent, the U.S. Department of State will refuse to issue the passport. The exception to this rule is if the traveling parent has sole custody.
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