Unless a court were to order that a parent was barred from traveling out of state or out of the country with the children on vacation, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country on vacation, even if the other parent objects. Of course, if a parent wanted to travel somewhere that is clearly dangerous for anyone or clearly dangerous or deleterious to the children given their age or other relevant factors, a parent could object to traveling there with the children on that basis, but you’ll notice that the basis of the objection wouldn’t be “I don’t want the children traveling there with you” but an objection based upon placing the children in harm’s way. Otherwise stated, if the other parent simply doesn’t like the idea of you traveling out of state or out of the country with the children, that alone would not be a sufficient basis to prevent the children from traveling there.
Now at the beginning of this post I stated that unless a court were to order that a parent was barred from traveling out of state or out of the country with the children, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country, even if the other parent objects. Such an order would be very hard to come by.
Parents have a constitutional right to travel freely, and thus a constitutional right to travel freely with their children if they have sole or joint custody of those children. For a court’s order barring or restricting travel to survive and appeal and be legally enforceable, the court would have to have very good reasons for restricting a parent’s right to travel with the children, such as a parent having abducted or attempted to abduct the children in the past, that parent’s effort to abscond with and conceal the children from the other parent, whether the parent is a flight risk, the parent’s history of interfering with parent-time or visitation, and failure to provide required notices in advance of travel with the children.
This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.
Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.
But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.
What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?
I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.
So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.
If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.
Christmas/Winter Break for Parents Under Utah Code § 30-3-35 or (§ 30-3-35.5 for a child 18 months and older)
If your Christmas/Winter break starts December 17, 2021 and ends January 2, 2022 (i.e., school starts back up on Monday, January 3, 2022), then that means the period between December 17 and January 2 and 17 days (an odd number of days in the holiday break parent-time period). This is how the holiday would be divided:
§ 30-3-35(2)(f)(viii): the first portion of the Christmas school vacation as defined in Subsection 30-3-32(3)(b), including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.
The day halfway through the period between December 17 and January 2 would be 1:00 p.m. December 25.
Child support is for the financial support of your children, not a fee (or “ransom”) you pay to keep the children near you.
Regardless of where your children live, they still require financial support. Simply living in another country or in another state does not change that fact.
The obligation to pay child support isn’t normally conditioned upon the ex’s compliance with the parent-time orders (indeed, in Some jurisdictions there are laws that prohibit conditioning the exercise of parent time upon the payment of support or the payment of support upon the custodial parent facilitating the exercise of parent time).
Is your ex violating the visitation orders (also known as a “parent-time” order in some jurisdictions) by living in another country (or in another state)? Sometimes an award of custody to a parent is conditioned upon that parent living within a certain geographical Proximity to the other parent. If your ex has moved to a different country or out of state in violation of the court’s geographic proximity limitations, you may have grounds for seeking a modification of child custody such that custody of the children is awarded to you, if the parent does not return to a location within the geographic proximity boundaries.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If custody order says mother and child are not allowed to leave the state, is there any chance the court would allow them to go on a vacation to another country if the father says no?
I cannot speak for all jurisdictions, but I can answer the question based upon the law where I practice divorce and family law (Utah):
First, if the court were to order a parent not to leave the state (just the parent, not the parent with the child), that would likely be held unconstitutional, as a civil court does not have the authority to infringe upon an individual’s right to travel without a compelling reason.
Second, if the court were to order a parent not to leave the state with the child, that may be within the court’s authority to do so, especially if:
there were evidence that you have tried to abscond with the child to a foreign country (whether the foreign country is beyond the reach of the Hague Convention) or are at risk of absconding with the child to a foreign country.
the custody award, such as a joint physical custody award, was conditioned upon the parties residing within a certain geographical distance of each other.
That stated, if:
there is no concern about you absconding with the children to a foreign country, never to return;
the foreign country to which you want to travel on vacation is not a dangerous place (i.e., a place where Americans are routinely kidnapped or killed and/or where there are wars, insurrections, and/or dangerous natural disasters occurring);
there is no harm that a child would suffer by traveling with you internationally (such as a certain health or medical or mental health condition that makes international travel a serious danger to the child), I cannot see any reason why a court would deny you the right to travel to a foreign country on vacation; and
there is no other compelling reason to deny you and the child(ren) the opportunity to vacation internationally,
I doubt that any court would bar you from travelling internationally with the child(ren).
Utah Family Law, LC | divorceutah.com | 801-466-9277
What do I need to travel by airplane or travel internationally with my children after divorce?
What you will need if you and your child are U.S. citizens and you and your child are going to travel by air with your child within the U.S. will likely not be as much as what you will need if you and your child are U.S. citizens and you and your child are going to travel internationally with your child. Still, a parental consent letter for international travel with a child will be more than sufficient to cover your needs for domestic travel with the child within the U.S. So for these reasons, this blog post will detail what you need and what I recommend you have to travel with a child internationally.
Your child must have a passport. To get a passport for a child (whether 16 years of age or younger) follow the requirements of the U.S. Department of State Bureau of Consular Affairs. Those requirements can be found by clicking here.
Unless you either have sole legal custody of your child or meet certain requirements, the consent of both parents is needed to obtain a passport for your child.
If you have sole legal custody of your child, this is what is required of you to obtain a passport for your child:
You must submit evidence of this with the application. Examples include:
Complete court order granting you sole legal custody of the child, such as a divorce decree or other custody order
Complete court order specifically permitting you to apply for your child’s passport (photocopy is acceptable)
Certified copy of the child’s birth certificate listing you as the onlyparent
Certified copy of an adoption decree listing you as the onlyparent
Certified copy of the judicial declaration of incompetence of the parent that cannot appear in person
Certified copy of the death certificate of the parent that cannot appear in person
If your ex-spouse will not cooperate and give consent for your child to apply for an obtain a passport, then you will need to obtain either a court order granting you sole legal custody of the child, such as a divorce decree or other custody order or a court order specifically permitting you to apply for your child’s passport
Please complete the form with as much detail as possible.
The bureau may ask for additional information (e.g., custody order, incarceration order, restraining order) to protect against international parental child abduction.
Letter of Parental Consent for International Travel
The U.S. Customs and Border Protection division of the Department of Homeland Security provides this on its website:
[QUESTION] If a child (under the age of 18) is traveling with only one parent or someone who is not a parent or legal guardian, what paperwork should the adult have to indicate permission or legal authority to have that child in their care?
[ANSWER] U.S. Customs and Border Protection (CBP) strongly recommends that unless the child is accompanied by both parents, the adult have a note from the child’s other parent (or, in the case of a child traveling with grandparents, uncles or aunts, sisters or brothers, friends, or in groups*, a note signed by both parents) stating “I acknowledge that my wife/husband/etc. is traveling out of the country with my son/daughter/group. He/She/They has/have my permission.”
Another good reason for having a parental consent letter for travel with a child (whether domestically or internationally) is because some airlines may require signed consent from the child’s other parent before allowing a child to board the plan. Because entry and departure requirements for travelers often vary from one destination to another, an immigration official may ask to see signed consent from the child’s other parent before allowing a child to leave the country.
As for what Customs and Border Protection recommends a parental consent letter contain, the CPB website provides:
What should a parental consent/permission letter look like? Is there a Customs and Border Protection (CBP) form?
There is not a CBP Form letter but this is a letter you create. The “Parental Consent Letter” should include the following elements:
Who
What
Where
When
Why
Contact information for the absent parent(s).
Having the letter notarized is not necessary but highly recommended.
For frequent border crossers, the letter should not exceed one year. It is recommended to have the letter in English.
Here is a sample parental consent letter that I have prepared for some of my clients to use:
To Whom It May Concern:
I, _______________, am [the non-custodial parent] [the father] [the mother] [one of the parents] of the child more fully identified as:
Name: ______________ [first, middle, last], whose photograph is provided below for the purpose of identifying her
Date of birth: ______________
Place of birth: ______________
[If the child already has a passport and the child is traveling internationally, you may wish to include the following information in the parental consent letter:]
Child’s U.S. or foreign passport number:
Date and Place of issuance of child’s passport:
Date child’s passport expires:
______________ [name of the child]’s mother (and my [ex-wife] [ex-husband]) is ______________ [name of parent].
U.S. or foreign passport number:
Date and Place of issuance of [other parent’s] passport:
______________ [name of other parent, as it appears on other parent’s passport] has my consent
[to travel with our ______________ [son] [daughter], ______________ [child name] internationally as of the date appearing hereon and in the future.]
[to travel with our ______________ [son] [daughter], ______________ [child name], to [identify the foreign countries to which the child will travel] during the period between [start date] and [end date]. During that period, our [son/daughter] will be in the care and custody of [ex-spouse] and is anticipated to travel and/or stay with [identify other people the child will be traveling with, if any], the child’s [identify relationship(s), i.e., grandparent, aunt, uncle, coach, neighbor, etc.]. These fellow travelers can be reached at:
[Complete address of person(s) with whom child will be traveling/staying]
[Telephone number of person(s) with whom child will be traveling/staying]
[E-mail address of person(s) with whom child will be traveling/staying]
This photograph is a picture of [child] that accurately depicts her as of the date appearing hereon:
[include a recent, small, but clear photograph of the child here]
Signature:
_______________________________________
[printed out name of parent signing]
[Father/mother] of [child’s name]
STATE OF __________________________ )
: ss.
COUNTY OF _______________________ )
On this _____ day of ________________ 2018, personally appeared before me the undersigned, a Notary Public in and for said county and state [signing parent’s name], who is known to me to be the person who signed the foregoing document and who acknowledged to me that he signed it freely and voluntarily.
WITNESS my hand and official seal.
______________________________________
NOTARY PUBLIC
——————————–
Pro tip: Bring your child’s birth certificate (or certified copy of the birth certificate) with you to the airport to verify the child’s age and, in some instances, your relationship to the child.
Travel Provisions You May Want to Include in Your Decree of Divorce, if Your Decree Has Not Yet Been Issued
If you are not yet divorce and believe you might be traveling by airplane or internationally with your children after divorce, you may wish to cover some of these requirements in the provisions of your Decree of Divorce. You may want to include the following provisions in the decree of divorce:
express authorization for either parent to obtain a passport for each child;
express authorization for either parent to travel internationally with any or all of the children without having to obtain a letter of consent from the other parent
If there are compelling reasons to restrict a parent to traveling internationally with your children, or to restrict a parent to traveling with your children without your express written consent each time the children travel with that parent, you will want to ensure that you request that such provision are provided in your decree of divorce as well.