Divorce and Children’s Travel Issues

As a married couple with children, travel is not very complicated. You pack up the mini van, load up the kids and hit the beach, or the mountains, or whatever your destination may be. As parents, you worked together to organize the trip – everything from the dates of travel, to the location and how much money you planned to spend, or what you would pack was all worked out ahead of time by both of you. Sure you may have spats while on vacation, but for the most part, things go smoothly.

But in divorce, traveling with the kids is much different; suddenly a whole slew of issues arise when your ex says he wants to take your daughter to Disneyworld.

Divorce is hard on both parties emotionally, and usually one or both parties feel hurt. Perhaps one parent had an affair and the sting of that has not quite worn off yet. The thought of your cheating spouse getting to take your child on a trip she will surely remember forever makes you furious. He’s the bad guy, why does he get the privilege of taking your daughter to meet Mickey Mouse for the first time? It just isn’t fair.

Or maybe your split was fairly amicable but you are now struggling with the financial ramifications of divorce. Your ex wife is remarried to someone wealthy and they have the means to take your son skiing in Vail in the winter and on a Mediterranean cruise in the summer, while you, on the other hand, can only manage to scrimp and save enough for a beach weekend. You know your child enjoys the luxurious vacations more. Again, not fair.

Even if there aren’t lingering emotional issues or money concerns, you may find yourself fighting with your ex because you both want to take your children on vacation during their scheduled spring break or over the Fourth of July holiday.

There are countless reasons why traveling with your children can cause problems after divorce. And while there is nothing you can do to simply erase all of the points of contention between you and your ex with regard to travelling, there are certainly steps you can take to make things a little smoother.

Have a Controlling Document

It is of utmost importance to have some sort of controlling document that addresses your child custody arrangement. Even if you think that you and your former spouse get along great and you have been fine sharing custody for a year already, it is in your best interest to get that arrangement in writing. At any given moment there could be a breakdown in your schedule that has been working flawlessly for so long, and with no legal document in place there are no defined custodial rules.

There are three different legal documents that can dictate a custodial arrangement. You can have your child custody arrangement spelled out in a separation agreement. This works if both parents are able to come to an agreement over how they want to share custody. You can include as many or as few details as you want in your separation agreement. Some may want to simply include that they share a ‘week-on/week-off” custody schedule, while other parents will include where the child will spend each holiday, what medications are permitted, what the child will wear to school, and even what time the child should be in bed every night.

A separation agreement is great in that both parents have been able to come up with a plan or schedule that they agree with. The problem with a separation agreement is that if at any time one parent decides they are unhappy with the arrangement, he or she can simply file a complaint for child custody and the court will start from scratch.

Another document you can have is a court order. If you are unable to reach an agreement on custody, then you will find yourself litigating your custodial issues in court. At the end of your custody hearing the judge will make an order and that will be your controlling document. In this instance if either party no longer likes the terms of the order, the only way it can be modified is by showing a “substantial change in circumstances” that would warrant a modification.

The third document you could have that controls your custodial schedule is a hybrid of the two already mentioned, it is called a consent order. A consent order includes the terms as agreed on by the parties; in that respect it mirrors a separation agreement. But a consent order is signed by a judge and enforced or modified the same way any other court order would be.

It is always best to have one of these three documents in play if you are separated or divorced and have children. You never want to be in that gray area where you don’t know what custodial rights each parent has.

What goes in the document?

There are certain travel related provisions that should be in your controlling document. Some are fairly standard, such as a provision that requires a parent to notify another parent when they take the child out of the state. But, there are many other travel related issues that you may want to consider including in your agreement or order.

Consider having a holiday schedule that supersedes your regular custody schedule. That way you can spell out that you will alternate which parent gets spring break week (or any other holiday) each year. This can avoid an argument over who gets to plan a vacation with the kids during that time. That way, if based on your regular custody schedule one parent ends up with custody over the Fourth of July weekend every year, the other parent still has the opportunity to share that weekend with the children.

Next, contemplate who is permitted to travel with the children. What if your former mother-in-law wants to take the kids to Tweetsie Railroad over a weekend. You may be fine with that, or you may not. How do you feel about your ex bringing a significant other on a vacation with your child? If you have concerns about who your child should be traveling with, address that to the best of your ability in your controlling document.

What about sleeping arrangements? What if you are against co-sleeping and your wife wants to take your child somewhere with only one bed. What if your child is an infant and you are concerned that your former spouse may not have a pack-and-play or other travel crib? This is another issue that can be addressed in advance and discussed in your agreement or order.

Along those same lines – which parent provides the travel gear? For younger children this may be car seats, travel cribs, etc. For older children it may be a tablet or a pair of hiking boots. How are you going to feel if your child leaves the iPad you just got him for Christmas on the plane while on a trip with your ex wife? Notably with older children it may not be logistically possible to prevent your child from taking that iPad on his vacation, but its just another aspect of traveling that can cause strife.

Another issue that comes up frequently is if one parent plans to take the child on a trip that will require missing school days. Sure your son would love the opportunity to go with Dad to California to see a Lakers Game, but is it OK for him to miss a whole week of school? Whether or not it is permissible for a child to miss school under these circumstances can be addressed in advance as well.

Are you going to know where your child is or have the ability to speak to her when she is traveling with your ex? You may want it included in your agreement or order that the she is to make a daily phone call while travelling with the other parent. Or that you should be kept aware of her location at all times.

Finally, which parent is going to keep possession of the child’s important documents? This includes everything from birth certificates to passports and insurance cards. Your controlling document should have some language about which parent can keep the documents, and also that the parent will provide them to the other parent timely upon request. Imagine you’ve spent thousands of dollars booking a trip to Europe for you and your children, only to find out that your ex refuses to let you have their passports.

Enforcing your Travel Rules

Say you have included every travel-related provision under the sun in your custodial document; you have addressed every potential issue. Flash-forward to the first vacation your ex takes with the kids and he refuses to let you talk to the kids for the entire week (despite the fact that your agreement or order calls for daily phone calls). What do you do? Is the document useless?

There is always a way to enforce your legal document. If your ex breached the terms of your separation agreement, you can sue him or her for breach of contract.

If you have a court order (or a consent order), then your remedy is to file a motion with the court and have your ex held in contempt.

While your enforcement options don’t truly remedy the mistakes already made, it certainly will grab your ex’s attention and put him or her on notice that if they continue to breach the terms you will continue to take legal action.

The reality is that there will undeniably be issues related to your former spouse traveling with your children that frustrate you. There is no way to anticipate and address every single thing that could occur. But, the bottom line is that the more issues you can consider and address in advance, the less frustration you are going to feel down the road.


Rosen attorneys are available for consultations by both phone and video conference – call 919-787-6668 for more information.Learn More
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