Limitations on Taking the Children Out of the Country

Parents sometimes disagree whether one of them should be allowed to take children out of the country without the other parent after the parents’ relationship ends. It is not uncommon for parents to negotiate conditions for international travel when the possibility is brought up at the time of a divorce or paternity proceeding. A recent case from Alaska illustrates what courts in most states will do if the parents can’t agree.

When the parents divorced, the mother was awarded custody of the child. The father asked, as part of his request for visitation, to be allowed to travel with the child to Micronesia, a small country consisting of a number of islands in the South Pacific, to visit his new girlfriend. The judge ruled that the father did not give indications of being a risk to abscond with the child, and did not impose restrictions on travel. The mother asked the judge to reconsider and limit travel to countries that had signed the an international treaty designed to prevent parental kidnapping of children. (Micronesia hasn’t.) The judge declined, and the Supreme Court of Alaska affirmed the ruling.

The court’s ruling was relatively simple: the mother hadn’t presented any evidence that restricting travel supported the child’s best interests or that the father posed any risk of not returning. The trial judge’s ruling that general benefits of travel were in the child’s best interest was not unreasonable, and the Supreme Court agreed. Her argument was basically that the father had a girlfriend in Micronesia and no job in Alaska, so he might decide to stay there. The court wanted the mother to show that the father did not intend to return.

Oregon law also appears to favor assessment of the risk of not returning, and courts have been known to order a parent to deposit the child’s passport with one of the parents’ lawyers or the court as a preventative measure. Washington does not appear to have adopted a clear standard at this time, but well-regarded lawyers have publicly recommended adding a “both parents’ consent” clause in the parenting plan.

In general, if you think that you or the other parent may want to travel outside the country with your children, it should be brought up at the time of the divorce or other proceeding establishing the parenting plan. It would be a good idea to discuss the matter with a lawyer as one of the issues. If either parent has any significant connections outside the country, this should be discussed. In addition, if one of the parents has connections with a country that has not signed the treaty, and there is reason to expect an attempt to take children to that country, it is probably a good idea to discuss prevention.

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