It’s springtime, and you can’t wait for the vacation you’re planning with your kids over summer break. You start coordinating with your sister to drive to Oregon for a week of camping, when you remember the divorce papers you filed six weeks ago. You bring up the trip with your soon-to-be-ex over text, but they shoot you down immediately, even though the kids have been excited for weeks. You figured it wouldn’t be a problem because you’ve been sharing time on an informal parenting schedule, and the trip falls during your usual time with the kids.
Now you’re wondering, can your co-parent really stop you from taking a vacation with your children? Can you travel out of state or internationally with your kids during or after a divorce? And if you decide to ask the court for permission to travel, how long will that take?
In these situations, missteps such as leaving the state without proper notice or taking your child abroad without your co-parent’s consent can result in court sanctions or even loss of your parenting time. Good legal guidance can help you reach travel arrangements that work for your family and hold up in court. At Moradi Neufer, our California family law team has guided many parents through the same questions you’re facing. We know how California courts handle these types of cases and how to plan a trip even when custody questions are uncertain.
How Divorce Changes Your Family’s Travel Plans in California
Before you filed for divorce, taking your children on a weekend to the beach or a holiday with the grandparents was probably a matter of glancing at the calendar and packing the car. But as soon as a divorce petition is filed in California, that everyday freedom changes. Family travel falls within a broader legal framework designed to protect each parent’s relationship with their children, as well as the children’s stability and well-being.
Two main legal mechanisms reshape what you can and can’t do once a divorce case is open:
- Automatic Temporary Restraining Orders (ATROs) – When either spouse files a petition for divorce, certain court orders automatically activate. One such temporary restraining order specifically forbids either parent from removing their children from the state of California or applying for a passport for their children without first obtaining the written consent of their co-parent or a court order.
- Custody and Visitation Orders – Any travel decisions you make must fit within the terms of any temporary custody or visitation orders or final judgments in place. Even a simple weekend road trip can run into trouble if it cuts into your co-parent’s time.
Above all, courts will make decisions based on the best interests of the child. Judges will consider your child’s age and developmental needs, their existing routine with the other parent, and whether the trip interferes with their school or medical care. Courts will also take into account the safety of your destination, whether you’ve been responsive and transparent about the details, and any history of late returns or attempted one-sided travel.
This shift in mindset can be among the hardest parts of a divorce when you have children. You’re still the same parent who’s always made travel decisions for your kids, but now California law expects you to share that decision-making with your co-parent and, in some cases, to seek the court’s permission before you go. You can avoid costly missteps and protect the time you have with your children by working with a California family law attorney early in the process, before you book flights or make non-refundable reservations.
Can You Travel With Your Children While a Divorce Is Pending?
The short answer is yes – often, you can travel with your children while your divorce is pending. However, you must follow strict rules or avoid legal consequences. Whether you’re planning a road trip within California or a flight outside the state (or country), the answer depends on:
- Are there any temporary orders currently in place?
- Whose parenting time is the trip scheduled during?
- Where exactly are you going, and for how long?
- Do you have written consent from your co-parent or an order from the court?
For travel within California during a pending divorce, you generally do not need anyone’s permission if the trip falls during your own parenting time. For example, a Friday-to-Sunday drive to Big Sur or a midweek trip to Disneyland is usually fine, as long as the trip doesn’t cut into your co-parent’s days or interfere with your kid’s school schedule.
Some temporary orders may include in-state travel notice requirements, so make sure to check yours before you book. Even when you don’t need to get your co-parent’s permission, if you’ve been sharing parenting time informally, a sudden long trip can prompt your co-parent to ask the court for emergency orders. You can often avoid these situations by communicating openly with your co-parent about your plans.
Do You Need Your Co-Parent’s Written Consent to Travel?
If you plan to travel out of state, you cannot take minor children out of California during a pending divorce without the other parent’s written consent, agreed notice requirement, or a court order. This applies even if you filed the divorce petition, even if the trip falls during your own parenting time, whether you’re going just over the border to Reno or flying to a grandparent’s house in Florida.
If you and your co-parent can discuss and agree on travel decisions, a brief written agreement signed by both of you – outlining the destination and the children’s return plans – is usually enough to satisfy ATRO requirements. If your co-parent refuses to agree, your attorney can file a request with the court asking to allow the trip.
International trips during a pending divorce are subject to the strictest rules of all. First, you are subject to the same ATRO that prohibits removing the children from California without written consent or a court order. The same consent requirements apply if you want to obtain a new or replacement passport for your kids. An unauthorized international trip during a pending divorce is one of the riskiest moves a parent can make. Even when your intentions are good, the optics can be devastating for your overall custody case.
The U.S. Department of State administers the Children’s Passport Issuance Alert Program (CPIAP), which notifies parents when a passport application is submitted for their child. Depending on your destination, California courts may require extra safeguards before approving a trip, such as posting bond or filing a detailed itinerary.
It can be tempting to just go on a trip, especially if you think your co-parent is being unreasonable, but that choice rarely pays off. Violating an ATRO amounts to contempt of court. You could face monetary sanctions, loss of parenting time, modification of custody terms, and, in serious cases, criminal charges under California or federal law.
What If Your Co-Parent Refuses to Agree to a Trip?
Remember that a “no” from your co-parent doesn’t have to mean a “no” from the court. California family courts regularly hear travel-related Requests for Order, and judges are used to deciding these orders on short notice when summer break or a school holiday is approaching. For the best chances at approval, a strong Request for Order typically includes:
- Your proposed itinerary in detail, with addresses and contact numbers
- Documentation describing the purpose of the trip, such as a reunion or vacation
- A declaration from you that explains the importance of the trip to the children
- Proposed safeguards, such as a substantial bond held by the court
- Requests for modifications to the parenting plan to accommodate the trip
- An offer to make up custody or visitation for the other parent, if necessary
Judges most often grant these requests when a trip is in a child’s best interests, and the other parent’s concerns can be addressed with reasonable conditions. Even if you meet all of the necessary conditions, courts may still deny travel to certain destinations if there is a meaningful risk of abduction – for example, travel to a non-Hague country during a contested case.
How Joint Custody Affects Your Right to Take the Kids on a Trip
In California, joint custody is the default starting point for most family law cases, as the state generally holds that children do best when both parents stay actively involved in their lives (unless there’s genuine concern for their safety, such as in domestic violence cases). “Joint custody” covers two distinct concepts: joint legal custody and joint physical custody.
Legal custody is all about authority. Joint legal custody gives both parents equal rights and responsibilities – to provide for their children and to make significant decisions about how they’re raised, including where they live, their medical care, and their schooling.
When it comes to travel, joint legal custody generally means:
- Significant travel decisions, especially international trips and passport applications, require the agreement of both parents ahead of time.
- Routine in-state travel during your scheduled parenting time usually doesn’t require advance approval or written consent, although notice is often expected.
- Decisions about a child’s medical care during a trip – including emergency room paperwork or non-routine treatment – may require the other parent’s input.
Physical custody is about time. Joint physical custody means both parents have time with the child, though that might not be an exact 50-50 split. A 60-40 schedule or even a split between the school year and school breaks can qualify as joint physical custody.
For travel plans, the practical effects of joint physical custody are:
- You can travel with your children during your scheduled parenting time, though you may be subject to notice or consent requirements in your custody order.
- Any travel plans that bump into the other parent’s time require either an agreement in advance or a modification of your custody terms.
- Make-up time is expected when a trip causes the other parent to miss time with the kids.
Many California custody orders include language that requires specific advance notice – often 30 to 60 days – before you can take your kids on an out-of-state trip. Make sure to read your order carefully and put any required notice in writing every time. Even brief trips can spark conflict if your custody order requires advance notice and you forget to give it.
Sole Legal or Sole Physical Custody
Sole legal custody gives you broader authority over big decisions such as international trips and passport applications, while sole physical custody often means you don’t need the other parent’s permission to travel with your kids during your own parenting time. In either case, you should still expect to provide reasonable notice to the other parent if they have visitation rights, and California courts can intervene if your trip interferes with them.
If your co-parent has sole legal or physical custody, and you’re the non-custodial parent, your travel rights with the children are generally limited to the visitation periods you’ve been granted. Any plans to take your kids out of state during a visitation usually require advance written consent from the custodial parent or a court order that specifically allows the trip, unless your custody order explicitly grants you this authority already.
The biggest mistake parents make is assuming that the rules in their head match what’s actually in their custody order. A trip you’d normally book without a second thought can now require consent letters or judicial approval. The good news is that California law gives you tools to plan trips and protect your time with your kids, as long as you know how to use those tools.
The right legal guidance can make the difference between a stressful and contested travel case and a smooth family trip. At Moradi Neufer, our California family law attorneys help parents like you handle travel questions during contentious divorces, whether you’re planning an in-state weekend or an international vacation. We work directly with you to create travel plans that respect your custody order and keep your children’s well-being at the center. The sooner you start working with a lawyer, the more confidently you can plan your trip. Contact us now if you’re considering traveling during or after a divorce in California.
Common Questions:
1. Can my co-parent legally stop me from taking our children on a vacation?
Yes, depending on the circumstances. If you have just filed for divorce or if your custody order requires it, your co-parent can prevent the trip. In California, filing for divorce automatically activates restrictions on moving children out of state. However, a “no” from your co-parent does not mean an automatic “no” from the court; you can ask a judge to grant permission for the trip.
2. What are ATROs, and how do they affect my travel plans?
ATROs stand for Automatic Temporary Restraining Orders. They activate automatically the moment a divorce petition is filed in California. One of the primary functions of an ATRO is to forbid either parent from removing their minor children from the state of California, or applying for a new or replacement passport for them, without the express written consent of the other parent or a formal court order.
3. What happens if I take my kids on a trip without the required consent or court approval?
Violating travel restrictions or an ATRO is considered contempt of court. The legal consequences can be severe and may include:
- Monetary sanctions (fines).
- Loss of your scheduled parenting time.
- A permanent modification of your custody terms to your disadvantage.
- In serious cases, criminal charges under California or federal law.
4. Do I need permission to travel with my kids within the state of California?
Generally, no, provided the trip takes place entirely during your designated parenting time and does not interfere with the children’s school or medical schedules. However, you should always check your specific temporary or permanent custody orders, as some agreements include mandatory in-state travel notice requirements.
5. Can I take my children out of state (e.g., a road trip to Oregon or a flight to Florida)?
Not without written consent or a court order. Under California law during a pending divorce, you cannot take your children across state lines without your co-parent’s written permission or a specific order from the court. This rule applies even if the trip falls entirely during your scheduled parenting time.
