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 wonder if they need their ex’s permission to take their child out of state on 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 your visitation rights and the need for spousal permission on an interstate trip will determine your options.
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–are 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 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 you can take the kids wherever you want when they are in your custody? Possibly, but not automatically.
If you plan to go hiking or skiing here in Colorado, you almost certainly can do that without getting your ex to agree. Having them on board with the idea would probably be good, 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? Your custody agreement might require you to get permission from your ex. It depends on what was negotiated in your settlement.
What if you plan 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. If 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 have ambitious plans for a vacation.
Getting permission should always be done in writing. You and your ex may have developed a cordial relationship, especially concerning the kids. 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 it will probably be fine most of the time. 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, including the loss of parenting time.
Can I Change My Custody Plan?
Perhaps you gave up spring break when you negotiated your original settlement. 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 take 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 reach a verbal agreement and, perhaps, 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 contract. 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 handling 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 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 will be out of pocket the entire week and won’t know the difference. Perhaps you think it’s better to ask for forgiveness than permission. These are all terrible 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 imprisoned for up to three years.
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 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
This underscores how important it is to get the right visitation agreement in your original settlement. Furthermore, those terms must be specific and 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, your attorney needs to fight for an agreement that doesn’t require you to get permission every time.
The Law Office of Greg Quimby, P.C. knows how much family matters, and we understand 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 for an initial consultation.