If You Have Sole Physical Custody, Does That Mean Your Ex Can’t Take Your Child Out of State Without Your Permission?

I can’t speak for what the law is in all jurisdictions, but I can tell you what the law is in the state of Utah, and how the law applies here in Utah, which is where I practice divorce law.

Bear with me as I work my way up to answering your question, as some background is needed to answer the question clearly.

Merely being designated by the court as the sole custodial parent and having what is known as either sole or primary physical custody of the children does not mean that the court denies the other parent any contact with the children or any opportunity for the children to be in the other parents care and custody for periods of visitation or what is now known in Utah as parent- time.

While it is possible that a court could order that the parent who was not awarded sole or primary physical custody (the other parent is also known as the “non custodial parent”), that rarely occurs because unless a parent is found to be seriously, even grossly, unfit to have contact with the children, then the average non custodial parent he’s going to be found more than fit to exercise at least visitation/ parent-time with his slash her own kids.

So being designated by the court as the sole or primary physical custodian of the children, meaning that you have sole or primary physical custody of the children, does not give you absolute control over the children and the other parent’s, the non custodial parent’s, contact with the children and the amount of time that he or she spends with the children.

In Utah, the statutory minimum amount of parent time that a non-custodial parent gets with the children, so long as that parent is not found to be an unfit parent, is provided in Utah Code § 30-3-35.* Briefly stated, that schedule provides for the non custodial parent to get every other weekend with the children, three hours with the children each week (not every other week), up to four weeks with the children when the children are dismissed from school during the summer, and finally, the non custodial parent will alternate spending every other major holiday with the custodial parent. So what that means is that if the custodial parent gets to spend Thanksgiving with the kids this year, the non custodial parent would get to spend Thanksgiving with the children next year. The only exception to this every other holiday schedule is the Christmas or winter school break, which the parents will divide equally between them.

Now you know that the term “non custodial parent” does not mean that such a parent has no time with the children. Non custodial parents, unless otherwise ordered, we’ll get over night time with the children, just much less than the sole custodial or primary custodial parent.

So to answer your question as to whether being awarded sole custody gives you the power to dictate whether the other parent (the non custodial parent) can travel out of state with the children without your permission. Unless the court otherwise orders, the answer is no. the custodial parent cannot prevent the non custodial parent from traveling out of state with the children during the time the non custodial parent is awarded to spend with the children. If the non custodial parent wants to take the children camping out of state over the weekend, he or she Is free to do so and to do so without having to seek or obtain the permission of the custodial parent. nevertheless, when traveling out of state with the children, both parents are obligated to give notice to the other parent, so that if the parent and/or the children should suffer some mishap while traveling out of state, they can be more easily located. This notice of travel requirement is found in Utah Code § 30-3-36(2), which provides:

(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;

(b) destinations;

(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.

*Note that § 30-3-35 applies to children over the age of 5 years. For children under the age of 5, the statutory minimum parent-time schedule is articulated in Utah Code § 30-3-35.5.

Utah Family Law, LC | | 801-466-9277


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