Traveling as a married couple with your children isn’t very complicated. Organization is key. As parents, you work together to plan everything from the dates of travel to the location and how much you plan to spend. Of course, there may be a few bumps here and there while on vacation, but for the most part, things go smoothly.

However, as a divorced couple, traveling with children is quite different. Emotionally, divorce is hard on both parents, and usually leaves one or both parties feeling hurt. One parent could have engaged in an extramarital affair that ended the marriage, and left an impact on the other that has not worn off yet. The image of your cheating spouse taking your child on a trip that the child will always remember will infuriate you. He’s the bad guy, why does he get the advantage of taking your child on a trip to Disney World to see Mickey and Minnie Mouse?

On the other hand, maybe your divorce was amicable, but your financial situation is less than extravagant because of the divorce.  Perhaps your former spouse remarries someone who is wealthy, and capable of taking your child skiing in the winter and on a cruise in the summer, while you can only afford to take your child on a trip to the beach for a weekend. You know your child has more fun on the elaborate trips. This realization can be painful and difficult.

No matter the situation, you may end up fighting over who gets to take the kids during certain breaks and holidays. Who gets to take the children on vacation during their scheduled spring break, Fourth of July, or Christmas holiday? There are many reasons why traveling with your children can cause problems post-divorce. While there is nothing you can do to omit traveling issues between you and your spouse as it relates to the children, there are steps you both can take to make things go a little smoother.

Have an Agreement in Writing

It is very important to have some sort of document in place that addresses the child custody arrangement between you and your former spouse. Even if you believe you and your former spouse have a good relationship and things have gone fine sharing custody for a year, it is in your best interest to have your agreements in writing. At any given time, there can be a rift between you and your former spouse, or a change in your schedule, and without a legal document in place, there are no defined rules for custody.

There are three types of legal documents that can be used to spell out a custody arrangement:

  1. Separation agreement
  2. Court order
  3. Consent order

A separation agreement works if both parents are able to agree on how they want to share custody. In a separation agreement, you can be as specific as you want. For instance, some parents include in the agreement that they share a “week-on/week-off” custody schedule, while others will include where children will spend holidays, what medications are allowed, and even what time the children should go to bed every night. A separation agreement is the perfect tool for parents who have created a plan or schedule that they both agree will work for the children. However, the downfall with this type of agreement occurs when one parent decides he is no longer satisfied with the circumstances. The dissatisfied parent can simply file a complaint for custody with the court, and the court will start from scratch.

The second type of document parents can utilize is a court order. If you cannot reach an agreement on custody with your former spouse, then you will have to go to court to settle this issue.  At the close of the hearing, the judge will make a determination of custody, put it in an order, and such order will be controlling. In this situation, if a party is dissatisfied with the judge’s order, the only way to modify it is by showing a “substantial change in circumstances.”

The third type of document you could use is a consent order, which is a combination of the separation agreement and the court order. A consent order contains the terms both parents agree on, which mirrors a separation agreement, but it is signed by the judge, and enforced or modified the same way a court order would be.

If you are separated or divorced and have children, it is always in your best interest to have one of the three documents listed above in play. As a parent, you never want to be uncertain about the custody rights each parent has.

What Should be Included in a Controlling Document?

There are certain conditions related to travel that should be included in your controlling document, regardless of the type of document. Some provisions are standard, such as requiring the other parent to notify you when they take the child out of state. But there are other issues you may want to address in your document.

A holiday schedule that takes priority over the regular custody schedule is one consideration you might take into account. Spelling out that you and your former spouse will alternate spring break weeks or holidays every year will make it easier on everyone. By doing this, you can avoid arguments about who gets to take the kids during that time. For example, if the regular agreement determines that one parent has custody for Memorial Day weekend every year, the other parent still has the opportunity to share that weekend with the children.

Who is allowed to travel with the children? This issue should also be addressed and considered in the document. Would you mind if your former father-in-law traveled with the kids to Disney World for a weekend? You might be fine with that, or you might not like that at all. What about your former spouse bringing his or her significant other on a vacation with your child?  If there are any concerns about who travels with your child, they should be addressed in your controlling document.

How do you feel about sleeping arrangements? What if you do not agree with co-sleeping, but your former spouse wants to take your children to a place that only has one bed? What if your child is an infant and you are worried that your ex-husband may not have sufficient equipment, such as a travel crib, for the baby? Again, this is an issue that should be addressed and discussed in your controlling document.

Additionally, who will provide travel gear for the children? For your younger children this could be car seats, travel cribs, etc. For your older children this could be a pair of hiking boots, a mountain bike, or even an iPad.  What happens if your child leaves his new iPad you purchased with his dad? Particularly with older children, it may not be possible or reasonable to keep them from taking their iPad on vacation, but it is another aspect of traveling that should be considered.

An issue that regularly comes up deals with a child missing school days for a vacation. Your daughter might want to spend time with her father in Texas to see a Dallas Cowboys game, but is it appropriate for her to miss an entire of week of school to do so?  Such concerns also should be addressed in advance.

Will you know where your child is or be able to speak with him when he is traveling with your former spouse? You may want to include in your agreement or order that your child will contact you daily while traveling with the other parent on vacation, or even just for the child to simply keep you updated about his location.

Lastly, which parent will keep the child’s important documents? Such documents include birth certificates, passports, insurance cards, and the like. Your controlling document should specify the parent who can keep these documents, and also detail the parent who will provide these documents upon a timely request. Imagine you’ve spent a fortune on a trip to Europe for you and your children, only to find that your ex-spouse refuses to hand over your children’s passports.

Enforcing Travel Rules

You’ve tried to address every possible travel-related concern in your controlling document. But, your ex is on vacation with your children for two weeks, and now refuses to allow them to talk to you. What do you do? Does the document matter? Is it enforceable? If your former spouse violates the terms of the separation agreement, you are able to sue him for breach of contact.

If you have a court order or a consent order, you can file a motion with the court and have your former spouse held in contempt. Even though the enforcement options available to you will not fix what has already happened, it will certainly let your ex know that if he continues to breach the agreement, you will continue to take legal action.

The fact of the matter is that there will be issues involving your former spouse traveling with your children that just frustrate you. Unfortunately, there is no way to predict and address every possible scenario that could arise. However, the bottom line is the more issues you consider and plan for in advance, the better things will be moving forward.