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Out-of-Country Custody Issues

January 26, 2023 | Posted In Family Law - Family Law

A New Jersey mother has been granted permission to take her child to the Netherlands on vacation this summer, despite protests raised by her ex-husband about the trip in court. In a ruling from the New Jersey Superior Court, the vacation is not in violation of the existing custody agreement between the two parents and does not present a risk that the mother will not return with the child.                                             

In Lyle v. Lyle, Family Part Judge L.R. Jones ruled that “travel for summer vacation is an extremely important, special, and time-honored part of family life.” As such, the six-year old child will be allowed to travel to Holland where his maternal grandparents live and spend nine weeks visiting there. His mother’s original plan was to travel with her son to Holland, spend two weeks visiting her family and then return home to Ocean County while her son spent the duration of his vacation with his grandparents.

The father filed a lawsuit to try and stop her, claiming that he feared his ex-wife would “refuse to return the child to the United States.” However, Judge Jones found that the mother had never exhibited any behaviors that would indicate she wanted to kidnap her child and remove him from his father’s care. While the judge noted that the mother’s vacation plans would keep the father from seeing his son for an extended period of time, she did approve the vacation itself.

New Jersey Custody Laws and Out-of-Country Travels

The state of New Jersey maintains jurisdiction over children who live there, with some exceptions. Any child for whom the state holds jurisdiction must receive consent from both parents in order to be removed from the state, unless an Order of the Court has been issued. Even for a summer vacation or a weekend road trip, parents who share custody must obtain the other party’s permission before hitting the road.

If one parent plans a vacation outside the state, he or she needs to get the other parent’s written consent before the trip can take place. If the other parent refuses to consent, the vacationing parent must file an application with the state Courts for permission to take the vacation over the other parent’s objection.

According to the Court Rules, the parent must file this motion at least 24 days before the Court will hear the case. So if a parent plans to take a vacation on August 1st, he or she needs to get the legal paperwork started more than 24 days before leaving to allow time for the court proceedings and ruling.

For vacations outside the United States, it is important to have everything settled several months before the trip, if at all possible. The written agreement or the court order is required to allow a child to leave the country.

Is My Ex-Spouse Allowed to Take My Child Out of the Country on Vacation?

Following a divorce or separation, both parents must strictly comply with the court’s custody order. This includes complying with all provisions regarding vacations both within the United States and abroad. If you and your former spouse or partner developed a parenting plan as part of your divorce or separation, this plan should be part of the court’s order, and you will want to carefully review your plan as well.

This is the first place to look to determine if your former spouse is allowed to take your child (or children) out of the country on vacation. While some custody orders permit foreign travel subject to certain restrictions, others are more stringent, and most at least require the other parent’s consent prior to planning an out-of-country vacation. Common restrictions in custody orders and parenting plans regarding foreign travel include:

  • Restrictions on destinations
  • Restrictions on the duration of travel
  • Restrictions on activities while traveling
  • Advance notice requirements
  • Written consent requirements

If you refuse to consent to an out-of-country vacation, your former spouse or partner may still be able to go to court and obtain an order authorizing his or her planned vacation. This is important to keep in mind when making decisions about whether to approve a proposed overseas trip. If you work with your former spouse or partner, you may be able to have more of a say in his or her vacation planning. In contrast, if you refuse consent and a judge approves the trip anyway, you will be at the mercy of the court’s decision.

What Documentation is Required for a Child to Travel Out of the Country with One Parent?

Even with consent or court approval, parents who are planning overseas trips with their children following a separation or divorce must still meet various other requirements. For example, many government agencies and travel authorities will require a notarized written consent letter. This letter may need to contain information such as:

  • The child’s name, birthdate, place of birth and current address
  • The child’s and traveling parent’s passport numbers
  • The traveling parent’s name and date of birth
  • The destination, duration and reason for the child’s travel
  • Contact information for the non-traveling parent

An attorney can help you determine what information is required. Your attorney can draft the letter and assist with notarization as well.

What if My Ex-Spouse Takes an International Vacation with My Child Without My Consent (and Without a Court Order)?

Taking an unauthorized overseas trip with a child is a very serious matter. In this scenario, kidnapping charges are a very real possibility, and the parent who took the overseas trip could face loss of custody (or visitation) rights and other consequences as well. If your former spouse or partner has taken your child out of the country without your consent and without a court order, you should discuss your options with an attorney right away.

Discuss Your Parental Rights in New Jersey with an Attorney at Helmer, Conley, & Kasselman, P.A.

At Helmer, Conley, and Kasselman, PA, we help parents who share custody of their children determine the best ways to handle vacations and breaks. To discuss your travel plans and the steps you should take to ensure smooth sailing, contact a New Jersey family law attorney at HCK today.

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