Child Passport Disputes After Divorce in Malaysia

Why do passport disputes happen?

There are two usual reasons. One parent fears the other will take the child out of Malaysia for good. Or one parent needs the passport for a genuine trip and the other will not hand it over.

The Immigration Department generally asks for both parents’ consent when a minor applies for a passport. After a divorce, that can become a sticking point.

Check your child’s custody order first. If it already deals with the passport, this is a matter of enforcement. If not, you need the other parent’s consent or a court order.

Who keeps the child’s passport?

There is no automatic rule that the parent with custody keeps it. The custody order may say who holds it, or it may say nothing.

In practice, the parent the child lives with often keeps it. Where there is a risk of the child being taken abroad, courts have ordered passports to be kept by the court, by a lawyer or by the other parent.

If your order is silent, you can ask the court to add a passport term through a variation application.

Getting a passport when the other parent will not consent

You can apply to the court for an order that lets the passport be issued or renewed without the other parent’s consent.

Explain why the passport is needed, for example a school trip, visiting family overseas, medical treatment abroad or a relocation the court has approved.

The court will ask whether the travel is good for the child and whether there is a real risk the child will not come back.

Getting back a passport the other parent is holding

You can apply for an order that the other parent hand the passport over.

The court may give it to you, or have it kept by the court or a neutral person such as a lawyer. This depends on how much trust there is between you and how real the risk of removal is.

Ignoring a court order to hand over a passport is contempt of court and can lead to a fine or jail.

Stopping a child being taken overseas

If you fear the other parent will take the child out of Malaysia without your consent, you can:

• Ask the court for an order that the child must not be taken out of Malaysia. Section 89 of the Law Reform (Marriage and Divorce) Act 1976 allows a custody order to include this.
• Ask for the child’s passport to be kept by the court.
• Ask the Immigration Department what steps it can take on your child’s travel document.

These steps do not cover a foreign passport. If your child has dual citizenship, raise this with your lawyer early.

What the court looks at

The child’s welfare comes first. The court will consider:

• Why the passport or trip is needed.
• Whether the parent asking has kept to court orders before.
• Whether there is a real risk the child will be taken and not returned.
• How it affects the child to be unable to travel.

An older child’s views may count too, as may practical matters such as the school calendar.

Put passport terms in your custody order

It is easier to prevent a dispute than to fight one. When your custody order is being agreed or decided, ask for clear terms on:

• Which parent keeps the passport.
• When it can be used.
• How much notice is needed before travel abroad.
• Whether a bond or written promise is needed.
• What happens to it in school holidays when the child is with the other parent.

Clear terms make enforcement simple if a dispute arises later.

Dual citizenship and foreign passports

Some children hold two nationalities. A Malaysian court has no direct control over a foreign passport.

If your child has or can get a foreign passport, tell your lawyer. Options include asking the foreign embassy not to issue or renew it without both parents’ consent, and putting a term about it in the custody order. These are not foolproof, but they help.

In an emergency

If you believe the other parent is about to take your child out of Malaysia, get legal help at once. An urgent application can be made without first notifying the other parent (called ex parte), and the court can act quickly.

Keep a copy of the custody order and your child’s birth certificate where you can reach them fast. Once a child has left the country, getting them back is much harder.

Looking to engage a divorce lawyer? If your child’s passport is being withheld, or you fear your child will be taken abroad, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.