One of the first things you’ll see on the Family Law Summons is the Automatic Temporary Restraining Orders (called “ATROS”). These orders issue automatically upon the filing and service of the Petition. One of the ATROS states that neither parent is allowed to take the children out of the State of California. The order is intended to prevent parents from removing children from the state before appropriate custody and visitation orders can be put in place.
Once there are appropriate orders in place, leaving the State of California only requires notice to the other parent. Leaving the country on the other hand is a whole other ballgame. First, your children have to have passports. If you and the other parent agree (and work well together) you can go to the passport office and apply. If the other parent will not cooperate with you or does not agree, you will need to file a motion requesting an order allowing you to obtain the passports.
There is the opposite situation where one parent has a real concern that other parent will abduct the children and leave the country. Depending on where the parent takes the children, it can be difficult, and in some cases impossible, to have the children returned to California. There are ways to protect against this, and each option depends on whether the kids have passports or not.
If the kids have passports and there is a real risk the other parent will leave the country with the children, you can file a motion and request that the passports be held by the court or one of the attorneys. Without passports it will be difficult for the children to leave the country. There are additional risks with parents taking their children to Mexico since travel via car or foot does not require a passport to enter the country. In that case, your only protection is to get an order that the children are not to leave the country without the other party’s consent or a court order.
If the children do not have passports, then you can visit the US State Department website and create an alert that will notify you if anyone applies for or requests a passport for your children. This should provide some piece of mind that you will know right away if the other parent is trying to secure passports without informing you.
All the protections in the world will not be able to stop a parent who decides to take a child out of the country without consent. If that happens it is important that you contact the police department and an attorney who understands International Abduction Law. There are laws in place to assist with the return of children taken to foreign countries. These laws are codified under the Hague Conventional on International Child Abduction. We have blogged on that subject in detail before (here).
Even when abduction is not a concern there are still foreign countries that may not be safe for children or Americans in general. For example, the US State Department warns against Americans traveling to Afghanistan. Certain border towns in Mexico are also very dangerous. If the other parent wants to take the children to a country you feel is unsafe you will have to file a motion requesting the Court bar the other parent from traveling to that country. Use this motion with caution because the motion can be seen as an attempt to interfere with the other parents time as opposed to a genuine attempt to protect the children’s best interest. It is best to speak with a qualified family law attorney about your case and the circumstance before you file the motion. There is also a list of countries the State Department warns against traveling to. You can find that list at https://travel.state.gov/content/passports/en/alertswarnings.html
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.