Question: Can I take our child(ren) out of state for a vacation without my ex’s consent, written or otherwise?
Question Detail: I gave a year notice, 8, 2 and 1 month notice that I had planned a trip to Disneyland. My ex is now saying that our son can’t come with me because he is having a hard time in school (he won’t be missing any school) and because my ex’s baby is due anytime. Basically making excuses. I’ve given my ex the full itinerary for the trip. Can I take our son with me on vacation during my visitation/parent-time with him without having to obtain my ex’s written consent?
This is an important question, and one that comes up all the time.
You gave more than sufficient advance notice (good for you; many parents fail to do that), and you did you in writing. You’re on the right track.
Unless your decree of divorce or other applicable court order provides otherwise, Utah Code Section 30-3-36(2) applies to your situation. It reads as follows:
(2) For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:
(a) an itinerary of travel dates;
(c) places where the child or traveling parent can be reached; and
(d) the name and telephone number of an available third person who would be knowledgeable of the child’s location
As you can see, Section 30-3-36(2) does not require the other parent’s consent or permission for you to travel with the child during your custodial or parent-time periods. You are required to give the other parent information pertaining to when you are traveling, where you will go, and contact information for the child, but the other parent cannot prevent you from traveling with the child by withholding “consent” because her consent is simply not required.
“That’s all well and good, Eric,” you may say, “but if my ex won’t let me pick up the child from her house in time to make the flight to Anaheim, my legal rights aren’t any protection!” True. So if you have enough time, you can file a motion for a writ of assistance, asking the court to issue an order to your ex to exchange custody of the child with you on your custodial/parent-time day that can be enforced by local law enforcement (i.e., the police of sheriff can physically force your ex to turn over the children to you). You will generally need at least 28 days between the day you file and the day of the hearing for this work, although if you have less than 28 days between now and your Disneyland trip, you could file your motion for writ of assistance on an “ex parte” basis, and hope that the court is sympathetic to your plight and sees your situation as necessitating issuance of a writ immediately.
Utah Family Law, LC | divorceutah.com | 801-466-9277