If you are separated and plan to travel out of state with your child, you will need to make sure that you have a passport and that you have permission from the court. In order to obtain a passport you will need consent from both parents and signatures. If your custody order does not provide for travel out of the country which most do not, then you will need to also obtain consent from the other parent in writing with specifics on the travel or you will need to obtain permission from the court if the other parent objects. In most instances when a parent objects to out of the country travel, the parent wanting to travel will have to establish the necessity and that it is in the best interests of the child. Oftentimes, the court errs on the side of caution and denies the request. Taking a child out of the country imposes many risks when parents are separated, depending on which country you intend to travel. These risks include the difficulty of enforcing a custody order should a parent decide to not return with the child. Oftentimes the court will look to see if the country is part of the Hague Convention which means that the country has signed on to enforce foreign custody orders. Even if they are part of the Hague Convention is not a guarantee for a speedy return of child. Research should be done on each country prior to traveling to see how they have treated United States custody orders. Other risks in travel include diseases, instability of a country, and requirement for certain vaccinations. If you plan to travel with a child and are separated, you will need to plan well in advance in case you need to go to court to seek permission.
Tag Archive for: custody
Oftentimes when you have a custody agreement, your agreement or order spells out specific times and meeting places for custody exchanges. Even the best crafted custody agreement, however, does not contemplate every situation that possibly could arise. In these circumstances, you must often make a judgement call. For example, if your child is burning up with a fever, it may not be in the best interest of your child to insist that they return to you for your designated custodial time. You may want to consider your child and let them rest until they are up for travel. With winter upon us, you may also find yourself required by your custody order to exchange your child in the middle of a snowstorm, or worse, blizzard. Again, you should use your best judgement in deciding whether to follow the custody agreement. This is why it is very important that parents be able to communicate with each other. Oftentimes, you will need to make accommodations for the other parent. You cannot expect a custody agreement or court order to resolve every possible scenario.
For those parents with an ex who threatens the police or court if the custody agreement is not followed when one of these emergency circumstances arise, I would suggest that you still exercise your best judgement. As long as it is a true emergency and you are no abusing the system and alleging your child is sick when in fact that are perfectly fine, it is not likely that you will be found in contempt but be prepared to prove it just in case. Take a photo of your child’s temperature, get a copy of the weather report for your area. Always put the safety of your child and well being of your child first in an emergency circumstance. That being said, it may be a good idea if the other parent misses time due to snow or an illness that you offer make up time. The more you give, the more you get. Mother nature does not play favorites and it could easily happen on your time.
If you are one of the many families who are facing custody issues and you find that your ex has file a petition for custody or a petition to modify your current order, you should consider filing a counterclaim for custody. While it is true that you do not have to file an answer or a counterclaim in order for the court to decide a schedule, what happens if your ex suddenly withdraws their petition the day of the hearing? If you do not have a counterclaim filed, then the Court will cancel the hearing since there will be no petition to hear. While this is fine if you do not want a change, it may not be so great if you were expecting to raise issues on why you need an order or why you want a change, this is not such good news. In order to prevent this from happening, you should always file a counterclaim on custody. That way, if your ex does decide to withdraw the petition filed, the Court will have to hear the case unless you also withdraw your petition.
International parental kidnapping occurs when a child is removed from the United States with the purpose of interfering with the other parent’s custodial rights. The federal law governing this issue, 18 U.S.C. §1204, defines child as a minor less than sixteen (16) years old and specifies that parental rights includes any custody rights (sole, joint, visitation) whether existing by court order, prior agreement or operation of law. There are affirmative defenses under the law which would consider if removal is pursuant to a court order, for the purpose of escaping domestic violence, or of a temporary emergency nature. Sanctions for parents found to be guilty of international kidnapping include imprisonment for up to three years.
Return of the child may be arranged through the Hague Convention of the foreign country is a signatory to the convention. Otherwise, the U.S. Department of State will try negotiation with the foreign country in an attempt to secure return of the child. With regards to U.S. custody orders, it’s good practice to provide that international travel may only be by written consent of both parties or court order. Parties should pay attention to which country the other parent intends to travel to and whether that country belongs to the Hague Convention on Civil Aspects of International Child Abduction and would recognize a U.S. custody order if necessary. Additional information on international child abduction is available through the U.S. Department of State website below.
U.S. Department of State: International Child Abduction
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) clarified an uniform approach to dealing with child custody matters nationwide. Since its inception in 1997, 49 states as well as the District of Columbia have adopted the Act. One of the goals achieved through the UCCJEA is clear guidance on who should exercise jurisdiction over a custody matter. The preferred method for establishing jurisdiction is based on the home state of the child. The homes state is defined as the state where the child had been living for at least six (6) months prior to the custody action or since birth if the child is less than six months old. If jurisdiction is not clear based on an analysis of the home state, the courts should then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state.
Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination. There is an exception to the rules on jurisdiction in the event of an emergency. If a child is in danger and there is a need for immediate action, the jurisdiction where the child is located at that time can enter a temporary emergency order. The UCCJEA also provides a procedure for registration and enforcement of custody orders across state lines.
Many custody orders will provide whether the parties are entitled to vacation time with the children in addition to their regularly scheduled time as well as any relevant notice provisions. A standard provision includes at least thirty days advance notice to the other parent and all details of the itinerary/contact information for the children while away. Parties may want to consider going into additional detail about any restraints on travel, particularly out of state or out of country. It’s good practice to provide that international travel may only be by written consent of both parties or court order. Parties should pay attention to which country the other parent intends to travel to and whether that country belongs to the Hague Convention on Civil Aspects of International Child Abduction and would recognize a U.S. custody order if necessary.
Every person, regardless of age, must have a passport to travel out of the country. Initial passport applications for children under sixteen (16) years of age must be made in person. Both parents of the child should be present. If one of the parents cannot be physically present, they may complete a parental consent form instead. This form must be notarized and a copy of the parent’s ID must accompany the form. There are exceptions to the requirement of the consent of both parents including court order or proof of sole custody. Additionally, there is an application to obtain passport without the other parent on the basis of exigent circumstances and the unavailability of the other parent. You can visit the U.S. Department of State website for additional details on the requirements to obtain a passport at travel.state.gov.
Vacations are a staple of the summer season and you want to make sure your children are able to enjoy vacation with you. A vacation schedule can be included as part of a custody order to alleviate any confusion or disagreement. Standard provisions specify how many weeks of vacation each party is entitled to per year, how the weeks may be exercised, what type of notice should be given, and what additional information should be provided. A sample vacation schedule paragraph is below:
Each party shall have two non-consecutive weeks of vacation each year with thirty days advance written notice to the other parent. If there is a conflict on vacation where both parties plan the same week, the party who gives written notice first shall be entitled to the week. Written notice may be via email or text message. The parties agree that they will each exercise their vacation week to include their regular scheduled time so as not to unnecessarily disrupt the regular custody schedule.
The parties agree will provide the other parent with a travel itinerary, and names of anyone traveling with the children and provide contact information for how to reach the children while on vacation. The parties agree that if either parent intends to remove the children from the Commonwealth of Pennsylvania for any purpose for any length of time over two days, that he or she will provide one (1) week notice to the other and indicate the destination where he or she intends to take the children, names of anyone traveling with the children, the length of the trip and a phone number and address where the children can be reached. Neither party will be allowed to travel out of the country with the children unless both parties agree in writing or a Court Order is obtained. The parties acknowledge that the vacation schedule takes precedence over the regular schedule and the holiday schedule takes precedence over the vacation and regular schedules so that neither party may take vacation during the other party’s holiday time.
Under Pennsylvania law, specifically 23 Pa. C.S. 3104(b), one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession. Members of the military are considered to be residents of their home state even if they are stationed elsewhere at the time a divorce is commenced. The home state would be the state where they intend to return to and reside in following any term of active duty.
Jurisdiction for custody matters is usually also based on a six month time frame. Jurisdiction is proper in the home county of the child which is where the child has resided for at least six months prior to commencement of the action. Temporary absences from the county do not negate residency for the purposes of jurisdiction. Further, in emergency situations, the six month residence requirement may be set aside. Temporary emergency jurisdiction may be exercised if the child is in the jurisdiction at the time and it is necessary to make an immediate determination to ensure the child’s safety. For example, an emergency order may be entered if a child has been abandoned, or is subject to mistreatment or abuse. An emergency order would only be valid until a court with jurisdiction as the home state of the child makes a determination.
Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” Procedurally, the party intending to relocate should give at least 60 days notice or notice as soon as possible after they have knowledge of the relocation. A full hearing on the relocation should be held prior to the move if the relocation is contested. In addition to addressing the 16 factors to consider in any custody award, the moving party must also address the 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.
Failure to abide by the procedures listed in the statute has consequences. Specifically Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorneys fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.
A guardian ad litem (GAL) is an attorney the court appoints to represent the best interests, and often times the legal interests, of a child in a court proceeding. Once appointed, the GAL should participate in all future proceedings as necessary to continue to ensure the child’s interest. By law, the GAL is mandated to meet with the child as soon as possible following appointment. Additionally, the GAL should review all the relevant records related to the case and conduct further investigation as deemed necessary. Further investigation may include speaking with the child’s parents and/or guardians as well as interviewing other potential witnesses.
The GAL’s ultimate responsibility to the court is to make specific recommendations for an order that will address the child’s safety and provide for his or her best interests. The GAL’s responsibility as it relates to the child is to explain the proceedings to the child in a manner that they can understand. Additionally, the GAL is to explain the child’s position to the court along with any evidence in support of their position. A GAL must be appointed in any case where it is alleged that the child is a dependent. A GAL may be appointed in other instances such as custody cases or Protection from Abuse cases involving the child. It is possible that a child can be appointed a GAL to protect their best interests and a separate attorney to protect their legal interests.
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