In California, a question often raised in a divorce is whether a parent can take a child out of the country (or state) on a vacation or to visit relatives. It’s also one of many particulars that must be addressed between parents to help achieve an amicable final settlement agreement going forward.
I sat down with California divorce attorney Kristen Holstrom to discuss not only how travel arrangements are handled for out of state and out of country trips during and after a divorce, but also the need for cooperation on other important matters that are best settled between parents whenever possible.
Rules of the Road for Taking Your Child out of State
Can you take your child out of the state during the divorce process in California?
No, unless you have the written consent of your former spouse or a court order.
Family Code 2040 details standard family law restraining orders formerly referred to as “ATROS” or “Automatic Temporary Family Law Restraining Orders.” These orders restrain either party from removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or an order of the court.
Pursuant to Family Code 233, standard family law restraining orders are triggered and effective against the petitioner upon the filing of the petition and the issuance of the summons, and effective against the respondent upon the personal service of the summons and the petition.
It is a counsel’s responsibility to thoroughly advise his or her client of the standard family law restraining orders because violating these restraining orders can have serious consequences because they are court orders.
It should be noted that Family Code 2040 covers a myriad of other issues in addition to out-of-state travel.
Are there any special rules for taking your kids out of the country?
The same rules apply for taking your children out of the country during a divorce case as they would for out of the state. Parents need to comply with Family Code 2040 and Family Code 233 in both instances.
So, with automatic temporary restraining orders, it’s not that you’re precluded from going out of state, it just sets the ground rules in terms of notification and permission that would be required in order to do so. Do I have that right?
Correct. You can travel with your children out of the state or the country with the written consent of the other party or a court order.
Parents often agree that children can go out of state during the divorce process. Although written consent is all that is required, the best practice is to formalize that agreement into a court order. As such, I generally advise my clients to execute a stipulation and order which memorializes the agreement for out-of-state travel into a formal court order.
However, at a minimum, parents need to have written consent before leaving the state. This often comes in the form of an email or a text stream that clearly memorializes and indicates the parents’ agreement to allow the out-of-state travel or out-of-country travel.
So an email or text is sufficient as long as it’s clear?
In my experience, that is generally sufficient as long as it is very clear that the other party was giving his or her consent and was clear regarding what the scope of his or her consent was. For example, how long was he or she giving the consent for the child to be there?
You always want to memorialize your agreement and reduce it to writing. For example, you want the other parent to say or confirm that he or she is allowing the child to go to Texas for five days and stay at this hotel, etc.
Exactly. I recommend providing the other parent a copy of the itinerary and keeping an open line of communication prior to, and throughout the travel dates. It is a good practice to keep a paper trail of your communications. This information may become crucial for the court’s review in the event that the other parent falsely alleges that he or she never gave consent for travel. It is unfortunately not infrequent that one parent files a request for an ex parte hearing over a false claim, including lack of consent to travel out of state with the children.
What is an ex parte?
A request for ex parte orders is a request for an emergency hearing. The purpose of an emergency hearing is to address matters that cannot be heard on the court’s regular calendar such as a request to make orders to prevent an immediate danger or irreparable harm to a party or to the children involved.
A threat to conceal or leave the state/country with a child may be grounds for an emergency order. This is why having a paper trail of written consent with the other parent is so important. This reduces litigation, frivolous court filings, and establishes expectations.
Does what is in the child’s best interest play a role in some of these decisions? For example, every summer the child goes to visit grandparents in Florida and goes to summer camp. Are they now restricted from doing that because one parent no longer allows it even though it’s part of the child’s regular summer routine?
Yes, courts are always going to look at what is in the best interests of the child. However, in most cases, when we are talking about a best interest analysis, we are more broadly discussing facts related to a regular visitation schedule and a parenting plan.
If you’re getting into should the child be allowed to visit dad who lives in Texas, then you are getting into depth regarding a best interest analysis, especially considering this is a reoccurring event.
However, if dad just wants to take the child to London for summer, then the court is still going to consider the best interests of the child. If you’ve been doing traveling to London for 15 years during your marriage, say you’ve been going to visit dad’s parents in London, and the other parent suddenly does not agree to travel, the court is going to look at whether or not that is reasonable.
Let’s fast forward to the point where the divorce is finalized and done. Do you still need the other parent’s permission to take a child out of state?
It depends. Once the divorce is finalized and there is an entry of final judgment on all issues, then the standard family law restraining orders are no longer in effect. Those get dissolved upon the execution of the judgment.
However, there may, and often are, specific orders contained within the judgment that dictate how out-of-state and out-of-country travel are handled. These orders can vary from case to case.
Can you give us some scenarios that might affect travel?
One scenario is that the judgment is silent as to out-of-state travel or out-of-country travel, yet the parents have joint legal and joint physical custody. Without a court-ordered limitation, after the judgment is entered, both parents would be able travel out-of-state or out-of-country without limitation. This is not very common.
Is that the advice that I would give my client if the judgment was silent? I would let my client know that yes, by law, you can you do that. However, I would also inform my client that it is good practice to ensure that he or she is communicating with the other parent regarding notice, emergency contact information, itinerary, etcetera. This may prevent unnecessary litigation, in addition to false claims of emergency relief. In addition, if you would like the other parent to be communicative with you regarding travel, you are going to need to return the favor.
More often, the parents will have joint legal and joint physical custody, and there will be restrictions or directives regarding travel. For example, you may need to provide 30 days written notice to the other parent that you are going to travel out-of-state. Or, you may need to obtain written consent from the other parent if you are attempting to travel out-of-country.
You would advise full and direct communication?
Communication with the other parent is crucial. It eliminates thousands of dollars of attorney’s fees, limits litigation, and helps to establish everyone’s expectations. I would say co-parenting is always the better route and also the less expensive route.
The last thing you want to do is go out of the country without communicating to the other parent, even if you do not have a court order preventing you from doing so. If the other parent is not informed, this may result in an ex parte request and order, The Hague Convention getting involved, and/or a potential accusation of abduction. As you can see, things that are otherwise easily avoidable can get really messy and expensive very quickly.
You mentioned that the terms of the judgment are critical. Let’s assume there’s joint legal custody but physical custody is 90/10. Does that change the analysis at all or if dad has 10 percent physical custody, are they able to still travel?
Yes. Dad would be able to travel during his custodial time if the travel provisions are otherwise silent. However, if dad’s travel dates infringe on mom’s time, then he would need to get permission from mom. This is not because he needs permission to travel, but rather, because he’s interfering with mom’s parenting time. Dad needs permission to have the children during her time.
What is the difference between legal custody and physical custody?
Physical custody deals with the amount of time the children are with each parent.
Physical custody is where the child resides. If the parents have joint physical custody, the children share significant time with both parents. This does not necessarily mean “50/50.”
Joint physical custody works best when two parents live within close proximity of each other. For instance, parents live in the same neighborhood or close in proximity to each other. When this happens it is more frequent that the parents share an equal percentage of parenting time during the week.
An example of a joint custodial arrangement would be that the children spend two days at mom’s house, two days at dad’s house, and alternate weekends with each parent. This is an equal timeshare and would be a clear representation of a joint physical custodial arrangement.
Sole physical custody is where the children reside with one parent and visits with the other parent. An example of this would be where one parent lives in California and the other parent lives perhaps in Texas. It would be generally implausible for the parents to have a joint custodial timeshare because while residing in two different states, especially when school is considered.
Another example of a sole physical custodial arrangement is when a parent is incarcerated, or a parent is in a mental institute, or a parent is in the military and they’re deployed. This could also occur if there is a safety concern involved. These are examples of sole physical custody because the children are predominantly in the physical custody of one parent.
How is that different from legal custody?
Legal custody deals with the health, education, and welfare of the children. Legal custody is the right to make legal decisions regarding the health, safety, and welfare regarding your children. It is the right to get medical records regarding your children. It is the right to make medical decisions regarding your children. It is the right to get school records regarding your children. It is the right to enroll or dis-enroll your children in school. It is the right to make any decisions regarding the welfare of your children.
Joint legal custody means that both parents share the right and responsibility to make decisions regarding the health, education, and welfare of the children. Sole legal custody means that one parent has the right and responsibility to make decisions regarding the health, education, and welfare of the children. It’s very uncommon for parents not to do joint legal unless there’s a significant reason against it.
Can this create problems?
At times. I actually have a few cases right now where we are proceeding to trial on whether or not the one parent should be given sole legal custody or the sole decision-making power over medication. It is a very “hot topic” right now. For example, one parent wants to medicate a child with ADHD medication or psychotropic medication and the other parent doesn’t.
In general, if there’s joint legal custody, does that mean that for any of these decisions they require mutual agreement or how does that work in practice?
It generally requires that parents have to do more than confer. They actually have to consult and if they can’t come to an agreement, then it generally requires one of them to file with the court and ask for the court to make an order or for the court to make them the decision maker. What is specifically required of the parents in a joint legal custodial arrangement is often articulated with specificity in the terms of the order.
Could they be the decision maker on that particular issue?
Yes, the court can order a parent to have the decision-making power regarding that particular issue.
One thing that is a real eye-opener for most people going through the divorce process when they have custody disputes is how much authority or control the law now has over their life that they never realized or recognized.
That’s true. The reality is, a judge is not going to know your life and what is best for your children as well as you do. However, when parents do not agree, courts have to intervene. A judge may hear your case for 20 minutes before issuing orders regarding where you children will reside, what medicine your children should take, where your children should go to school, and what doctor your children should see.
In general, you are far better off making important decisions regarding your children with the other parent, even if you aren’t on the best of terms with each other.