Imagine this: You have your suitcases packed and your kids waiting in your care. At long last, it’s time for your vacation. You’ve planned and saved for months, and things seem to be going your way. It’s been a long winter, a bad year with your divorce, and it’s finally time to relax. That is, until you get a call from your ex, or, worse, an attorney or the police, claiming that you cannot go anywhere with those kids. What are you to do?
Well, if you are like most newly divorced, this scenario is a legitimate fear, and, what’s worse, for all too many of you a stark reality. Like it or not, when you are divorced, your divorce decree governs not only when you see your kids, but where you go, and whether you can travel at all, when they are with you.
This does not mean, however, that each of you has a be-all/end-all veto over the other’s travel plans. If that were the case, ex-spouses would use it out of spite with no recourse from the court.
It does mean, however, that if you do not take certain necessary steps now, you could very well find yourself unable to travel when and where you want- even during your own parenting time. Here are your necessary minimum steps:
Court Order – The best way to preserve your travel plans is to put them directly into your order. Be specific with dates, locations, whether third parties can attend (friends, family, significant others, and so forth), when and how you can each contact the kids (text, phone, Skype), emergency contacts, hotel locations, and whose plans “trump” if you each select the same days for vacations. Also be specific that providing this information does not authorize your ex, and vice versa, to stalk or otherwise interfere with your trip, such as “happening” to be on the same flight for her own trip once she has the date and time of your flight. Rather, the reason you are providing these details to each other is to allow both of you to be reasonably informed of where your kids will be at all times.
Negotiated Plans – If you do not have travel plans specified in your order, do not despair – instead, negotiate them, and put them in writing, reasonably in advance of your intended trip. Expect that whatever you request your ex will also request, such as each of you having one week’s vacation or permission to travel out of the country. If your court permits, make those plans an amendment to your order, and file them with the court so that they are enforceable just like your original order. As always, consult with an attorney in your area so that you understand just what you are getting into with an amendment, whether and how to change it (if you can) and what specific language you need to include to make it binding.
Passports – Do not wait for the last minute if you need passports – you may find yourself negotiating with your ex for permission or filing an emergency motion with your court if she refuses. The federal Two Parent Consent Law, Pub L No 106-113, § 236, 113 State 1501 (1999), regulates passport applications for minors. A “minor” is an unmarried person under age eighteen. 22 CFR 51.27. Minors age sixteen and older may sign their own application, or their parents or individuals in loco parentis (authority like parents, such as guardians) may apply for them. To apply for a passport for a minor under age sixteen, however, both parents must consent, in writing or the applying parent must provide documentation showing his or her sole authority to obtain the passport. This “sole authority” may be in a sole legal custody order, an order giving the parent permission to travel with the child, an order terminating parental rights, or a notarized statement that the other parent consents or is unavailable to consent. “Unavailable” does not mean merely unreachable (e.g., your ex did not answer the telephone last night) but physically unavailable (e.g., your ex fled to Vegas five years ago, you have not heard from her since and she is listed as a missing person). The Secretary of State may also issue a passport “for compelling humanitarian reasons related to the welfare of the child,” such as may occur when parent and child leave a batterer. See generally, 22 CFR 51.27 and related regulations.
You can avoid these last-minute plans by sating in your order who will hold the passports (maybe you alternate, or you each hold one if you have more than one kid, etc.)
Bonds – If you are afraid that your ex will flee, or your ex accuses you of being likely to do so, then consider a bond. A bond is, essentially, money the travelling parent “fronts” and puts into escrow to cover the other parent’s costs in the event that parent has to retrieve the kids, hire a lawyer to return them, track you down, etc. If fleeing is a serious concern, however, we encourage you to reconsider the prospect of traveling, as it is costly and difficult to retrieve a child once the child reaches certain countries – and, in some, impossible. By comparison, if a sum of money will comfort your ex so that you can engage in legitimate travel and enjoy your time, knowing you ill return, then you might consider it money well put up, especially when you get it back upon your return.
State Laws – Be cognizant, despite these options, of your state’s laws. Some states specifically preclude parents from traveling to certain countries without the other’s consent, put distance limits on travel or require unique procedures for check in / check out with your ex, or the court, or both, phone contact, providing emergency contact information, and so forth.
Whatever you do, do not ignore these steps while you plan for your trip. If you do, you might very well find that your dream of relaxing in the sun with your kids disappears in the icy cold stare of your ex refusing to let you go.