There is some confusion among separated or divorced parents as to whether or not they can take their child out-of-state without permission from the other parent. The answer is that it depends on the laws in your state and whether or not a court order is in place. It may also depend on the status of your marriage.
What if the Papers Require Permission?
Child custody is dictated by the laws of your state. For example, if the child custody laws in your state don’t say anything one way or the other about taking your child out-of-state without permission of the other parent, you may still be prevented from doing it.
If your court order or parenting agreement says that you will only take your child out-of-state with permission of the other parent’s consent and knowledge, then you have to abide by that order or agreement.
The type of language in the court order regarding taking your child out-of-state may have been something you agreed to, or the judge may have ordered it for a variety of reasons, such as either you or your ex-spouse’s behavior in the past dictated it was necessary.
What if There Isn’t An Order or Written Agreement?
If there isn’t a court order or written agreement between you and your ex-spouse, then generally you may take your child out-of-state for a short period of time if it doesn’t interfere with the regular child visitation or child custody agreement in place.
However, there’s a huge difference between whether you can take your child out-of-state without the other parent’s permission and if you should take your child out-of-state without the other parent’s permission.
For example, if you take your child and fly clear across the country for two weeks without having the other parent’s permission, this could infuriate your ex-spouse to the extent that you may find yourself in court before a judge, having to defend your actions.
As such, a court order may be put in place barring you from taking your child out-of-state without the other parent’s permission. Thus, it’s generally a good idea to refrain from going against the other parent’s wishes. If you decide to go against the other parent’s wishes, you should – at the very least – get your lawyer’s advice before you do so.
What About Pending Child Custody Cases?
In some cases, you may have an opportunity to take your child on a vacation out-of-state or visit extended family at the start of any litigation before a temporary order is in place.
While it may not be illegal for you to take your child out-of-state, it’s not a good idea to go against the other parent’s wishes without at least talking to your lawyer first and getting their advice.
If your request to take your child out-of-state is reasonable and your child’s other parent withholds their permission, it may make them appear to be controlling and full of spite in front of the judge when and if your case goes to trial.
While a refusal may ruin your plans to take your child out-of-state, it could become a very valuable tool at your disposal in court.
What if I Want to Take My Child Out-of-State Permanently?
While you may be able to take your child out-of-state on a temporary basis without your child’s other parent’s permission, you probably won’t get away with it on a permanent basis.
However, unless you live on the state line and only plan on moving a few miles into the other state without the other parent’s expressed permission, a judge may take away your rights to have custody.
If you plan on moving your child out-of-state, this generally requires there to be a relocation trial if your child’s other parent doesn’t agree with the move. It’s possible that a judge can order your child home until the matter is resolved one way or the other.
The bottom line is that you should always consult with your attorney before taking your child out-of-state or making a move without permission. Most states have extremely strict laws regarding such matters, and they are changing almost constantly.
The reason these laws exist is because divorce and custody agreements are made with the assumption that both parents will keep their current living arrangements. When you or your ex-spouse relocates, the move may cause visitation and custody agreements to be re-negotiated.
Regardless of whether you are the parent who is moving or it’s your ex-spouse, you should consult a knowledgeable attorney as soon as possible. Your attorney can assist you in staying up-to-date on the laws and ensure that your rights as a parent are strongly protected.
What Do I Need to Know About Traveling Out-of-State With My Child?
Included in your custody order or parenting plan should be language that dictates how traveling with your child after your divorce should be handled. Even if your court order or custody agreement doesn’t dictate that written consent is required from the other parent, you should obtain it anyway.
Having a written consent from your child’s other parent that allows you to take your child out-of-state temporarily can be a valuable record if your ex-spouse decides to dispute your decision at a later date.
What Kind of Documentation Do I Need From My Child’s Other Parent?
There really isn’t any strict guideline as to what must be in your child’s travel consent letter. However, in general, it should include the following:
- Who is going to be traveling with your child?
- Name the legal guardians of your child and make sure they sign the consent letter.
- How the other parent can contact you and your child while they are out-of-state. Be sure to include all pertinent telephone numbers and other contact information.
- What are you asking permission for? Make sure the consent letter clearly states where you are going, and whether it’s out-of-state or out of the country.
- Include all travel plans. Provide a complete itinerary.
In addition to the above information, you and the child’s other parent should sign the consent letter in front of a notary public and have the document notarized.
What Happens If I Have Sole Custody of My Child?
If you have sole legal custody of your child, you may not necessarily need permission to travel out-of-state or abroad. However, it’s always a good idea to have a consent letter from the other parent.
If you are crossing into another country, the Customs and Border Patrol does recommend that you have all documentation such as a court decision, birth certificate of your child or a birth certificate that names only you as the parent, or death certificate of your child’s other parent. Basically, you need documentation that states you have sole legal custody of your child.
What If My Child and I Have Different Last Names?
If you have a different last name or family name than your child, you should have documentation that confirms your relationship to your child. Your child’s birth certificate may be appropriate, along with a marriage and/or divorce certificate that documents the name change.
What if We Can’t Agree On Travel Plans With My Child?
If permission to travel out-of-state or out of the country with your child is required by a court order, you shouldn’t disregard this requirement. If you go against a court order, you may be found to be in contempt of court, and you could be facing civil or criminal penalties.
Additionally, if you travel out of the country in violation of a court order, it could be considered an international parental kidnapping case.
In conclusion, you should speak with your attorney before traveling out-of-state or out of the country with your child to ensure you are not in violation of a court order or state law.
You should also write a parental consent letter detailing all of the information in this article and have it signed by the other parent and you in front of a notary public.
If you violate a court order and/or a parenting agreement and travel out-of-state or out of the country without permission, you could be found to be in contempt and face serious consequences. It’s always best to play it safe and get permission.
Don’t forget to keep any documentation regarding your relationship with your child and any other documentation you may need with you on your trip, along with the parental consent letter.
The courts will always want what’s in the best interest of your child, and the more you and your co-parent get along, the easier it may be to get permission to travel with your child – and the better it will be for your child.