You and your ex-wife have worked out the bumps and edges of separation, divorce, and child custody. Now you are looking to summer, when the parenting time schedule you two worked out includes three whole weeks with your adorable children, June and Auguste. You are excited to have little Auguste and June for most of July, and plan to drive down to North Carolina to the Outer Banks. Suddenly you stop — they are your kids, you are their Dad, but does the child visitation agreement allow you to take your kids out of state?
Interstate Travel with Your Children
Thanks to both the U.S. Constitution and the Supreme Court of the United States, interstate travel is a right granted to every American, regardless of age. You do not show passports to travel from Richmond, Virginia to Trenton, New Jersey. You may pay a toll to use a particular bridge going into a state, but you do not pay a tax or fee to leave a state (Crandall v. State of Nevada, 73 U.S. 6 Wall. 35 35 ). So no generally applicable law prevents freedom of movement for you or your children by vehicle, boat, or airplane.
Yet your children, citizens that they are, are not entirely free, either. Your Virginia divorce decree may place additional limitations on the freedom of movement they have during summer vacation and when in your care.
Out of the City Travel with Your Children
Within Virginia’s borders, no divorce decree will place legally binding limitations on travel. You and your wife may agree that, if June is not a strong swimmer, you will avoid deep lakes or whitewater rafting, but you can take the kids anywhere within the Commonwealth’s 42,775 square miles. That is a lot of turf to cover, even just sticking to the main roads. Virginia’s DoT says our fine state has 1,118 interstate miles of highway and an additional 8,111 miles of primary roads. That is a lot of driving, all the way from Virginia Beach in the east to westernmost Ewing in the west.
Is Traveling with the Kids Covered in Your Divorce Decree?
Summer vacations and divorce are common enough that USA Today recently published a piece on this, so if you are thinking about the issue, you are not alone. You can avoid disappointing Auguste and June with your July vacation to Disney World if you just plan ahead.
Virginia is very flexible with divorce decrees. If you and your wife, together with your two attorneys, work out an amicable agreement revolving around your children, the court is unlikely to overrule it:
- Child custody
- Child support
- Parenting time (or visitation)
- Summer vacations
- Incidental expenses
It is in the state’s best interest that you both continue to be good parents so you raise good Virginia citizens. The state will not interfere with a clause you and your attorney insert into the property settlement agreement regarding vacations, if it is legal and reasonable.
The typical clause will apply to both custodial and non-custodial parents, and usually requires advance notice to the other parent of an intention to take the kids out of state.
What if you want to take little Auguste and June to Cape May in April, over a long weekend? If your ex-wife is the custodial parent, you are on safest legal ground to ask your wife and get her written permission for the trip. Travel with a copy of her written permission, as well. If you are the custodial parent, you can inform her of your intent (well in advance).
A great plan for both you and your ex-wife is to provide facetime, texting, phone calls or postcards so your kids can stay in touch with their mother while with you on vacation. This will ease her worries, and you should expect the same courtesy from your ex-wife when she takes the kids off to her own adventure.
Worried Your Wife Won’t Return the Kids after Summer Vacation?
What if you worry your wife wants to take the kids out of the state for “summer vacation” but may never return to the state? If you and your attorney have crafted a vacation clause into the divorce decree, her move would result in a contempt of court charge. In other words, a bench warrant could be issued for her arrest.
What if you have no such vacation clause written into either the property settlement agreement or the divorce decree? The default view from Virginia’s courts, absent any specific language in a court order, is that you must adhere to the time limits of visitation but can take the kids where you wish. Just be back when you are supposed to return the children to their mother.
To allay fears, ask your divorce attorney to craft a post-divorce vacation agreement you and your ex-wife both sign. Stipulate limitations and required notifications for interstate and international travel.
Before heading out of state, contact us online or call The Firm For Men at 757-383-9184 to get answers to your child custody, parenting time and visitation questions. If the car is packed and ready to go, request a consultation right away in our Virginia Beach office! We cannot provide maps, but we can help you find a path through post-divorce issues.