Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If I Have Joint Custody Of My Child, May My “Ex” Prevent Us From Going On A Vacation Out Of The Country?

Vacations are essential for parents and their children to bond in a special way. I my over 20 years experience as a New Jersey child custody lawyer, the emotional element can drive two parents (who are not getting along very well) even further apart. When handling a divorce or child custody matter here in New Jersey, I have watched far too many divorced parents battle over vacation time with their children. At times, one (or both) parent will do anything in their power to interfere with the other parent’s vacation In the recent Superior Court decision of Lyle v. Lyle, two divorced parents battled over whether their child may or may not travel to Holland and the Netherlands during the summer with his mother. This case provides an excellent example as to how these cases are viewed by the Family Part of the Superior Court of New Jersey.

In Lyle, the court found that vacations are an incredibly special, important, and traditional part of family life. Vacations provide children with unique opportunities to bond with their parents and create life long memories. After a divorce, as long as there are no safety concerns barring unsupervised time with the child, each parent is normally permitted to enjoy reasonable vacation time with their child. If both parents have joint legal custody, then they both have an implicit obligation to act fairly and reasonably with each other in scheduling summer vacations, always with the best interest of the child in mind. Furthermore, a parent has the general right to request a passport for his or her child as long as it is for legitimate travel and vacation purposes outside the United States. Finally, if a parent refuses to cooperate in good faith in a passport application, and there is no proof that the traveling parent is a flight risk, the court may give power of attorney to the traveling parent so he or she can sign the necessary passport documents.

The Lyles were divorced and shared joint legal and residential custody of their only child, E.I., their six year old son. Their marriage ended in 2010, and afterword the parties had significant problems communicating and cooperating on basic child-related issues. Since 2010, they had returned to court at least once a year for litigation.

They again returned to court in 2015 with a struggle over summer vacation time. The mother wished to take the son to Holland so he could visit his grandparents in their homeland. She wanted her son to stay in Holland for nine weeks, effectively destroying any reasonable chance the father had to enjoy summer vacation time with his son. Moreover, the mother was planned to be in Holland for less than two weeks, and was basically seeking court permission to leave the child, unsupervised, with his grandparents for two months. The father objected.

While the mother was categorized by the court as being unreasonable, the father acted petty and irrational as well. He was against the mother taking their child to Holland for any time at all. Even though there was no evidence that showed the mother was a flight risk or parental kidnapper, the father claimed that he feared his ex-wife would take their only son to Holland, and then never return him to the United States. He also arbitrarily argued that there is nothing in Holland for his son to see. Lastly, he argued that the grandparents should fly to the United States to see their grandchild in Ocean County, New Jersey. The parents were not able to compromise and had to return to court to resolve the issue.

The Superior Court of Ocean County stated it is common knowledge that summer vacation is an extremely “important, special and time-honored” facet of family life. Moreover, vacations provide unique and valuable opportunities for a child to bond with parents and other family members, and create positive long lasting memories. Vacations allow both parents and children a rejuvenating break from the doldrums of everyday life, and mentally relax by experiencing new sights and sounds.

Reasonable vacation time with each parent is encouraged for children of divorce, and is categorized as in the best interest of the child. As such, divorced parents with joint legal custody share a mutual obligation to act fairly and in good faith to cooperate and create a schedule where both parents get to share vacation time with their child. Spending vacation time with both parents is not only in the child’s best interest, but also in each parent’s own self-interest as well. Some ex-spouses spend end up spending all of their summer vacation money and time, fighting in family court about vacation plans. Many find themselves spending money, time and energy battling over summer vacations that are supposed to be an escape from the stress and tension they are bringing on themselves with litigation. Often the underlying reason for this battle is simply that the parents do not like each other.  Some people actually prefer fighting than cooperating with their ex-spouse. When this happens parents do a massive disservice to both themselves and their children.

In Lyle, the judge stated that both parents were being unreasonable. The mother wanted to take virtually all of the fathers 2015 vacation opportunities with their son, and give them to her own parents. On the flipside, the father did not want his son to go to Holland at all. The court held that the father’s contention that his ex-wife would not return their child to the United States was completely unconvincing. The court also made special note in the opinion that even at oral argument, the father’s facial expressions showed a complete lack of conviction in his own words. The court also found the father’s argument that there is nothing to see in Holland, as lacking. It stated that the child’s opportunity to see Europe under the safe supervision of family members, should be supported rather than blocked by his father. Finally, the court found the fathers argument that the grandparents should travel to the United States, as unimaginative, and that he completely missed the point that going away on vacation is itself fun and beneficial.

The judge also pointed out that over the years, the court had interviewed many children of divorce who all stated that they gained happy and positive memories of vacations and travels with each parent. Conversely, memories of parents sabotaging vacation opportunities with the other parent have stood out in children’s minds as negative and painful. This is something every divorced parent should consider before trying to legally prohibit a child’s reasonable vacation plans with the other parent.

In Lyle, there was no question that the father deserved adequate parenting time with his son during the summer. However, the child also had a positive relationship with his mother. The court held that a trip to Holland of more reasonable and shorter length would provide the child with a wonderful vacation opportunity that should be encouraged. Therefore the court ordered that the child should travel to Holland with his mother for two weeks. The court further held that, a parent has the general right to request a passport for his or her child as long as it is for legitimate travel and vacation purposes, outside the United States. If a parent refuses to cooperate in good faith in a passport application, and there is no proof that the traveling parent is a flight risk, the court may give power of attorney to the traveling parent so he or she can sign the necessary passport documents.  Finally, the court ordered the mother would provide written verification of travel destinations, dates of travel, airline information, and lodging information. 

For more information regarding traveling with your children and your legal rights, please contact my office today.