Traveling During and After a Divorce
Summer is coming and for many people that means travel. For those in the middle of a divorce or who are recently divorced, traveling might look different. It is possible to travel domestically and internationally during and after a divorce action, but there are some important considerations.
Traveling With Your Children
Legal Custody: Pay close attention to the requirements of the applicable order, judgment, or separation agreement to make sure you have complied prior to travel. If no order or judgment has entered yet, in Massachusetts, married parents have joint legal custody of their children unless and until a court orders otherwise. This is also true during the pendency of a divorce. Joint legal custody means that both parents have all the legal rights and responsibilities of parenthood. Coordinating with the other parent prior to travel is highly encouraged, even if not required by an order or judgment. Many orders or judgments will require it necessary to obtain advance notice to the other parent or consent from the child’s other parent or from the court before traveling. After a divorce, the parents will either retain joint legal custody or one parent will be granted sole legal custody of the child. If one parent has sole legal custody, that parent has all the legal rights and responsibilities of a parent and legally does not need the other party’s consent to travel. However, even if one parent has sole legal custody, travel provisions in a separation agreement or judgment may require the other party to notify the other parent or to obtain consent prior to domestic or international travel.
Passport and Other Paperwork: A child will typically only have one passport, unless they are a dual citizen. Disputes can arise as to which parent will retain the child’s passport when the child is not traveling. This is often addressed via temporary orders during the pendency of the case and in the judgment at the end of the case. Usually, these provisions also address timing of exchange of the passport for international travel. If you are traveling internationally, you may also need or want to obtain written permission from the other parent to facilitate border crossings.
The Hague Convention: Officially called the Hague Convention on the Civil Aspects of International Child Abduction, this international treaty has been enacted by many countries around the world and provides remedies in case a child is abducted to or wrongfully retained in a foreign country. Some countries are not signatories, however, which makes knowing the status of the proposed country of travel important. If a country to which a parent proposes traveling is not a signatory, your rights to get your child back to Massachusetts in case of abduction are different and may not be enforceable. Consider this when consenting to travel abroad.
Itineraries and Contacts: Even if no court order requires them, it is wise to share an itinerary and emergency contacts with the child’s other parent. This should include flights, hotels, and possibly embassy or consulate information.
Traveling Without Your Children
Parenting Time: If your proposed travel will cause you to miss scheduled parenting time, you must notify the other parent. Additionally, the more advance notice you can provide, the greater the likelihood that the other parent may be willing to discuss make-up time or an exchange of parenting time to accommodate your travel. That said, voluntary travel that causes you to miss parenting time may not be a good idea during the pendency of a divorce action, particularly if you are asking the court for additional parenting time.
Court Dates: If you are proposing to travel alone and your case is still proceeding, schedule your travel time around court dates and promptly notify your attorney of any conflict. Asking the court to reschedule a hearing for vacation travel may not receive a warm reception. Follow your attorneys’ advice and maybe skip the big trips until your divorce is finalized.
Payments: If you are traveling, be cognizant of whether traveling to a different time zone may impact any support payments you are obligated to make.
Itineraries and Contacts: When traveling alone, you might not have an obligation to share information, but you might want to anyway. Perhaps your child is curious about where you are going or perhaps your co-parent wants to know the time change in case the child wants to call you. If it helps, think of this information sharing less as being about the other parent and more about being in the child’s interests.
Whether domestic or international travel, notifying and consulting with your current or former spouse is mandatory if you have joint legal custody and highly recommended even if you have sole legal custody. This column provides only general information and may not apply to every travel scenario. To discuss specifics, please consult with an experienced attorney.
Categorized: Child Custody, Divorce
Tagged In: child custody, co-parenting, divorce, parenting plans, The Hague Convention
