Post Divorce Foreign Travel with Children
by Alicia Hutchinson, Esq. (Marlton, NJ Office)
Many families enjoy traveling out of the United States with their children during school holidays and for special occasions. Visiting other countries can be a tremendously beneficial experience for a child.
If the parents have joint legal custody—which is the most common custody arrangement—then the consent of the co-parent is generally sufficient to permit a child to travel out of the country regardless of which them is the primary physical custodian. Happily, this is not an issue for most parents.
However, co-parents will not always consent to allowing their child to travel abroad. This can be for many good reasons. It can also, unfortunately, be for petty reasons. Parents sometimes refuse to consent to a trip simply to spite their co-parent for some real or imagined slight. Or, a co-parent hopes that they can leverage allowing the out-of-country visitation for some benefit, such as dropping or reducing child support.
When a co-parent will not consent to out-of-country visitation, then the parent seeking to travel with the child may make an application to the Court to override their co-parent’s objections and permit the travel. This can even go so far as the court granting the parent a Power of Attorney to apply for a passport for the child without the consent of their co-parent. Likewise, a parent who fears their co-parent will take the child out of the country without their consent may make an application with the Court to prevent the child from being taken.
The New Jersey courts make a distinction between visitation to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (typically referred to as simply as “the Hague Convention”) and those which are not. Since Hague Convention countries have signed an international treaty stating that they will honor one another’s custody orders and will cooperate with reunifying parents and children when a child has been abducted to their jurisdiction, the courts are usually more likely to permit visitation to a Hague country. However, this is not an absolute: the court may permit a parent to take a child to a non-Hague country, and may prohibit a child from being taken to a Hague country, depending on the circumstances. Some major American allies from which many American citizens and residents claim descent are not. Most notably, neither Japan nor India are signatories at this time.
There are many factors the Court considers when considering whether to permit a child to travel outside of the United States. These include but are not limited to the following: the domicile and roots of the parent seeking such visitation; the reason for the visit; the safety and security of the child; the age and attitude of the child to the visit; the relationship between the parents; the propriety and practicality of a bond or other security; and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.
If you have questions about your custodial rights and responsibilities as a parent, call us at 856-227-7888 or email [email protected] to schedule a free consultation.
The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.