Children's Passports and Travel During a Custody Case

For a parent in a California custody case, getting a child's passport alone is generally not possible. A child under 16 needs both parents' consent to the application under the State Department's rule. Once a divorce, legal separation or nullity case has been filed and served, the summons also restrains each parent from applying for a new or replacement passport for the child without the other's written consent or a court order.

Most people facing this question have a real trip or a real worry behind it. One parent may have family overseas and a summer visit already planned. Another may have a new academic appointment abroad in view. A third may lie awake wondering whether the other parent might leave the country with the children. In La Jolla, where many families have ties to other countries through university, research and clinical careers, a passport can quickly become one of the most loaded documents in a case. This page explains how the federal passport rules and California's custody law fit together, and where each one comes from.

Passports, Travel, and Custody Orders in California

Two separate sets of rules apply to a child's passport, and they work side by side.

The first is federal. Under the State Department's passport rules, both parents generally have to consent before a child under 16 can be issued a U.S. passport. The federal regulation puts it this way: "both parents or each of the minor's legal guardians ... must execute the application on behalf of a minor under age 16." That rule applies whether or not any court case exists.

The second is California family law. When a divorce, legal separation or nullity case is filed, the summons carries standard restraining orders (Family Code section 2040). These are court orders printed on the summons itself that apply to both parents without anyone asking for them. One of those orders bars either parent from applying for a new or replacement passport for the child without the other parent's written consent or a court order. Later, a judge can go further. Family Code section 3048(b) lets the court add specific passport and travel measures to a custody order when it finds a risk that a parent may take the child.

For families in La Jolla, these cases are generally filed in the Central Division of the Superior Court of California, County of San Diego, at the Central Courthouse, 1100 Union Street, San Diego, CA 92101. California law governs the custody order. Federal rules govern the passport office. How the court weighs custody for La Jolla parents in general also shapes how travel terms are written.

If You'd Like a Confidential Consultation

Passport and travel questions often turn on a few specific facts. These include the child's age, whether a case has been filed and served, what the current order says about the country of habitual residence, and whether anything in the record points to one of the section 3048 risk factors. A conversation with the firm can go through those facts and the terms a court may consider, including how a planned trip or move abroad fits with the existing order. La Jolla Family Law Advocates practices California family law only, so questions about another country's courts or passport rules are outside what the firm can address. To talk through how these rules apply to your family, contact La Jolla Family Law Advocates to request a confidential consultation.