Vacations offer a unique opportunity for parents and children to bond and create lasting memories. This is true for all families and it’s certainly true for a divorced parent who might not have regular physical custody of their kids. Spring break is coming upon us, and these parents might naturally wonder if they need to get their ex’s permission to take their child out of state on a vacation.
The answer is that it depends on your custody agreement. Settlements on child custody and visitation can take a wide range of forms. How your particular agreement addresses both your visitation rights and the need for spousal permission on an interstate trip will determine what options you have.
What Does the Custody Agreement Say?
As a parent, you have a right to spend time with your child, even if they don’t live under your roof. Colorado law holds that the best interests of the child–the overriding factor in all custody and visitation matters–is usually served by frequent contact with both parents. While that does not necessarily mean equal time or an equal sharing of vacations, Colorado family court judges do often aim for that goal.
What does this mean in practice? It means that a common custody plan is for you and your ex to alternate taking the kids for spring break each year. The same goes for Thanksgiving. A common approach on Christmas is for one spouse to get the kids up to December 26th and the other spouse to take them until school resumes in the new year.
So, does that mean when the kids are in your custody, you can take them wherever you want? Possibly. But not automatically.
If your plan is to go hiking or skiing here in Colorado, you almost certainly can do that without getting your ex to agree. It would probably be good to have them on board with the idea, but traveling within the state is typically protected. But, what if the hiking is going to be in the mountains of Wyoming or the skiing on the slopes of Utah? It’s possible that your custody agreement might require you to get permission from your ex. It depends on what was negotiated in your settlement.
What if your plan is to do this hiking or skiing up in Canada? Now, it’s highly likely that you will need permission from your ex. Courts are concerned about international travel. In the event that a parent decides, while traveling internationally, that they want to take off with the kids and not come back, they will be outside the area of the court’s jurisdiction. It should be noted that this same need for permission will apply to your ex if they are the ones with ambitious plans for a vacation.
Getting permission should always be done in writing. It’s quite possible that you and your ex have developed a reasonably cordial relationship, especially where the kids are concerned. In these circumstances, it’s natural that you might casually talk to your ex over the phone and mention your plans for going out of state on spring break. They might respond with equal casualness “I’m sure the kids will love that”.
You can do that and, most of the time, it will probably be fine. But what if something happens to one of the kids on this vacation–maybe an injury on the ski slopes. Your ex turns on you and insists the trip was done without their consent. You have no proof otherwise and could face legal sanctions that may include the loss of parenting time.
Can I Change My Custody Plan?
Perhaps, when you negotiated your original settlement, you gave up spring break. Maybe you were working a job that made it impractical to travel at this time of year. Since the divorce, your job situation has changed, and you’d like to be able to get every other spring break with the kids. Do you have any options?
Yes. Your attorney can file a Motion to Modify Parenting Time. While there are no guarantees about how courts will respond, they tend to look favorably on the idea of children being able to have vacation time with each parent.
Ideally, your ex will also see the wisdom in you getting vacation time with the kids (and maybe even looking forward to some downtime themselves). You may well reach a verbal agreement and, perhaps, also in writing, like in an email thread.
Even so, the motion to modify should still be filed. It’s in everyone’s best interest–you, your ex, and the kids–for the visitation and custody agreement to be in a legally enforceable agreement. Circumstances change. The cordial relationship you and your ex have one day can take a turn the wrong way tomorrow. The custody agreement is meant to protect against that.
Parental Kidnapping
What if you and your ex are at complete odds over how to handle this idea of an out-of-state trip? Maybe the vacation is far enough away that they aren’t entirely comfortable. You want to take your 10-year-old, 8-year-old, and 6-year-old to New York City for several days. Your ex fears the idea and wants to know why a week up in the local mountains won’t suffice. Your custody agreement requires permission for out-of-state trips. What can you do?
We can tell you what you can’t do and it's to ignore the ex and get on a plane to New York with the kids. Maybe you feel your ex is going to be out of pocket the entire week and won’t know the difference. Maybe you’re thinking it’s better to ask for forgiveness than for permission. These are all very bad ideas.
The reason is that taking children out of state, in violation of the terms of a custody agreement, qualifies as parental kidnapping. You can be charged with a felony and subject to up to three years in prison.
Now, we aren’t saying you’ll get the most severe penalty for a scenario like the one described. Parental kidnapping laws and penalties are intended for cases where the parent taking the kids really doesn’t intend to return them. But it is important to understand that simply taking a child in violation of your custody agreement does fall under the parental kidnapping umbrella and will land you in serious hot water.
Getting the Right Visitation Agreement the First Time
What all this underscores is how important it is to get the right visitation agreement in your original settlement. Furthermore, those terms must be specific, and they should meet the unique needs of your family. If your parents live near Disney World and you already know you want to take the kids there every other spring break, then your attorney needs to fight for an agreement that doesn’t require you to get permission each and every time.
The Law Office of Greg Quimby, P.C. knows how much family matters and we know how important it is to spend quality time with your children. Those vacations you want to take are meant to build memories that will last a lifetime. Let us fight for your rights, whether you’re just approaching a divorce now or whether you need to modify an existing agreement. Call us today at (719) 212-4227 or contact us online to set up an initial consultation.