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.
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 | 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.