Many clients have experienced vacation issues, especially when children are on break.
You know the scenario: Summer vacation is coming, and it is time to plan for road trips and activities with the children. You made your reservations, and all is ready to go – then BAM! The other parent said, “No, you can’t go!” What do you do? Do you have to have their permission? On the other hand, what if your ex-spouse wants to take the child out of state on vacation?
You Most Likely May Need Permission
In general, you need permission from the other parent to take your child out of state for vacation. This is especially true if the trip will interfere with the other parent's court-ordered visitation.
If you have sole custody, you can take the child out of state without consent unless your custody order prohibits this. Your trip cannot interfere with the noncustodial parent's time with the child.
These are essential questions to have answered during a child custody battle as you begin to navigate co-parenting from separate households.
Can a Parent Take a Child Out of State Without the Other Parent's Consent?
There are many answers to this question, depending on the status of your case. To answer – it depends, but more times than not, yes. Whether filing for a divorce or establishing paternity, the court imposes restraining orders listed on the Summons filed at the beginning of the case. These orders are implemented on BOTH parties until further order of the court.
Specifically, both parties are restrained from leaving the state of California with the child and/or applying for or renewing the child’s passport without the other parent's written consent or court order.
What If My Custody Hearing Is Pending?
If you have recently filed your Petition or Response and have not yet had a hearing on custody and visitation, do not leave the state with your child without written (even better if notarized) permission from the other parent. The court frowns upon leaving the state without an agreement (permission) or order from the court. Each case is heard on its facts, but penalties for doing so can range from a slap on the wrist to contempt actions.
What If My Custody Order Doesn't Specify Out-of-State Vacations?
If you have custody and visitation orders that do not address out-of-state visits, you are still prohibited from leaving the state absent a written agreement. If you frequently travel or vacation out of state, you should request that the court make orders addressing this issue to avoid issues in the future.
More times than not, the court will make orders facilitating out-of-state travel. Make sure to include a clause regarding out-of-state travel in your judgment, even if you do not have plans.
If your case has made it to judgment, you must follow whatever the orders are in the judgment. Oftentimes, out-of-state travel is not addressed. If it is not, you should get approval in writing from the other parent.
What If the Other Parent Does Not Agree to the Travel?
If the other parent does not consent to the out-of-state (including out-of-country) travel, you have two options:
1) make different arrangements or
2) file a Request for Order. Because it can take time to request written approval and court intervention if necessary, give the other parent as much notice as possible.
This will reduce last-minute stress and facilitate travel plans. If you are running short on time, you can file an Ex Parte Request for an Order which will typically get a hearing date within 24 hours of filing.
If you are uncertain about what your orders specify, consulting with a family law attorney should help you determine what steps you need to take.
The information in this post is for general information purposes only. Nothing on this site should be considered legal advice for any case or situation. This information is not intended to create; receipt or viewing does not constitute an attorney-client relationship.