San Diego Divorce Attorneys Blog
With summer right around the corner questions about summer vacations should begin coming soon. Inevitably one of the questions will be about the children traveling abroad. Whether you are the parent who wants to take the children abroad or you are a parent concerned about the children traveling abroad, this blog should help to explain what issues you will face, what concerns are valid and how to go about getting an order allowing or preventing travel abroad with the children.
The first issue that must be addressed is whether the children have passports. I did a whole blog about passports that you can find HERE if you have any questions. But assuming the children have passports, what are some of the considerations you need to address before planning a trip.
If you are the parent who wants to travel, you should discuss the plans with the other parent before ever bringing the trip up with the children. There is nothing more damaging to a co-parenting relationship than making one parent look like the bad guy for vetoing something. The children should not know about a trip until either you have received the other parent’s permission or the court has made an order allowing the travel.
This part is important. The first person you should speak to about the proposed trip is the other parent. In my experience parents are more open to giving permission when they are approached for permission before any plans are made. If the other parent hears about the trip from the kids I would bet money that parent suddenly has an objection. Remember, no matter how strained your relationship with the other parent you are a team raising the kids. You cannot leave your teammate out of these types of decisions.
No matter how you broach the subject there is always the chance the other parent objects to the travel. The opposite is also true. Just because the parent came to you first with the idea does not mean you have to agree the children can travel to a war-torn country. In either case, the Court will have to intercede to make a decision if the parents cannot resolve it themselves.
Destination will play a major role in the decision about the proposed travel. If the proposed trip is to Paris, France there is a high likelihood the court will sanction the travel. Paris is relatively safe and there are not travel warnings from the State Department. On the other hand, traveling to a country like Syria is most likely going to be denied. It is simply not safe to travel to Syria or other similarly situated countries right now. Every case is unique, so it is important that you discuss the facts of your case with a qualified family law attorney.
In the same vein as destination, a history of the family traveling abroad (especially if extended family lives abroad) will be a significant factor in the court’s decision. It could appear disingenuous for a party to suddenly object to traveling abroad if doing so was common during the marriage. This should not dissuade parents from objecting to travel if there is a concern about abduction of the children to a foreign country. As an example of the difference, if during the marriage the family traveled to Cabo San Lucas every Christmas during the marriage, it looks suspicious if, after separation, one parent argues that Mexico is not safe for travel. As counter to that argument, let’s assume the same facts, but the instead of traveling to Cabo, the suggested trip is to Juarez, Mexico. In that case, given the high murder rate and cartel violence, it would be reasonable to object to that destination.
So, what do you do if the other parent will not agree to your requested travel, or you are the parent that is objecting? The answer – like some many answers in Family Court – is you see a Judge to make a decision. This will require that you file a motion (depending on the circumstances you could file an emergency hearing) asking the Judge to either allow the travel or prohibit the travel. The Court will weigh the evidence, looks to the history of travel abroad, the location of the travel, any reasonable safety concerns and then will make a decision about what is in the children’s best interest.
From a legal perspective, the default order is that the children are not allowed to leave the State of California without the other parent’s consent or an order of the court. This is an order that automatically occurs as soon as the Petition for Dissolution is filed and the Summons is issued. You do not need to file anything for this order to be effective.
Be careful with objecting to reasonable travel requests. Your objection, if it appears unreasonable under the circumstances, could be viewed as a way of obstructing the children’s time and relationship with the other parent. So you might be successful in the short term by blocking a proposed trip abroad, but you could lose the confidence and respect of the Court in the process.
I know I say this in every blog, but every case is unique. What might work in one case might make no sense in another case. The only way to ensure you are making a good decision is to discuss your rights and the facts of your case with a qualified family law attorney.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.