Summer is right around the corner, which means one thing…School is almost out! Thinking of where you and your child want to spend some time soaking up the sun? Before you plan that out of the county or even out of the country vacation, let’s make sure your trip will be smooth sailing by making sure you are complying with all court orders.
First, determine where you are in your case (pre- or post-judgment). Take a look at your most recent order:
Take a look at the standing order on the back of your summons. Most pre-judgments include an order that provides that the traveling parent cannot take the child out of the county. A typical summons states, “Starting immediately, you and your spouse or domestic partner are restrained from removing the minor children of the parties from the state or applying for a new replacement passport for those minor children without the prior written consent of the other party or an order of the court.”
At this stage you will have a court order laying out your child custody and visitation rights. When a judge makes an order about child custody and visitation, it becomes a court order and is legally binding. Carefully read your court order to see if there is any language requiring consent of the other parent to take your child out of the country. Is there vacation language in your order? It is important to provide your full itinerary to the other parent, including but not limited to your flight and hotel information.
Tips for all stages:
- Plan vacation time ahead of time! Often times orders will specify a set time period for how long in advance one parent must notify the other parent of vacation plans. If you do not meet these deadlines, this could interfere with your ability to take that much needed vacation.
- Cover your bases! Going out of the country? Likely you will need a passport for you children. You may also need you children to have certain immunizations when traveling to foreign countries. Each parent should keep current copies of immunization records at all times.
- Do not turn your vacation into a competition! You children just want to have a fun time and get to spend quality time with their parent. If it turns into which parent can take the child on a fancier trip then this will not be fun for anyone involved. Make the focus of your vacation on your children and relaxation time for yourself – this is what a vacation is for isn’t it?
Next, for the non-vacationing parent where the other parent plans to vacation out of the US:
Does the other parent plan to take the child out of the country? Be careful! U.S. laws and court orders are not usually recognized in foreign countries and therefore are not directly enforceable abroad. Specifically, see if the country the other parent plans to visit recognizes the Hague Convention on International Child Abduction. This Convention seeks to prevent child abduction and provides for a return of a child who has been abducted in violation of a valid Court Order. A total of 45 countries adhere to the Hague Convention treaty. If a parent does not travel to a country that recognizes the Hague Convention there may be nothing to compel the child to return to the U.S. This can be particularly problematic when the traveling parent is taking the child to their home country that does not recognize the Hague Convention.
Finally, steps to take if one parent does not follow the custody and visitation order (per the CA Judicial Council’s Website):
- Contact your local police department and ask them to enforce the order.
- Contact the district attorney in your county. Look for the Child Abduction and Recovery Unit.
- File an action for “contempt” with the court. In contempt actions, you ask the court to enforce the order and make a finding that the other parent willfully disobeyed the court order. This is very complicated and can have serious consequences. Talk to a lawyer to get help with it.
Please 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.