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Travel During Periods of Visitation

Child Custody & Visitation

This article discusses a parent’s ability to travel with their child, both within the United States (also known as domestic travel) and internationally.

How do I know if I can travel with my child during my periods of possession?

If you have a court order, your court order will state what periods of possession or visitation you have with your child. You must read your court order carefully. 

Generally, a parent can travel with their child during their court-ordered periods of possession and access. A parent’s new spouse or significant other, the child’s step- or half-siblings, and other family members can participate in the trip. Only a court order can stop another person from going on a trip with the child.

Some orders may have restrictions on travel. If you do not know if your order has travel restrictions or if you need help understanding your court order, you should speak with a family law attorney.

I do not have a court order. How can I get an order in place that addresses travel?

If you are married, then you can file for divorce. As part of the divorce, orders will be made concerning your children. This includes any travel provisions. If you and your spouse agree as to divorce terms, you can find the guide here.

If you do not have a court order and are not married to the other parent, but separated, you can file a suit affecting the parent-child relationship (SAPCR). As part of the SAPCR, you can request the judge to make orders about conservatorship (the rights and duties parents have), possession and access (visitation), and support for your child. You can find the guide for a SAPCR here.

My current order does not have travel provisions, but the other parent and I agree on travel. What can we do?

Parents can agree to any child-related terms for their final court order. This can be done through mediation or an informal agreement. While their case is pending, parents can enter into a Rule 11 agreement to address travel with the child, and they can include their agreement as long term in their final order. Parents should speak to a family law attorney about preparing and including these types of agreements in a court order.

What happens if parents do not agree about travel provisions for the children?

If your custody case is open and you and the other parent disagree, you will need a final hearing. At the final hearing, the judge will make orders for your child. You must specifically ask the judge to make orders about traveling with the child. Generally, travel provisions are not included as part of the standard court orders regarding children. 

If you already have a court order and the other parent does not agree to update the order to include travel language, then you may need to file a modification. Talk to a family law attorney about your options and the legal standard for a modification. Read Changing a Custody, Visitation or Child Support Order

Does the other parent have to tell me when they travel within the United States with our child?

You must read your court order. If your court order says you have to tell the other parent when you travel with your child within the United States, then you must tell them. Failure to tell the other parent may be a violation of your court order. If you do not follow your court order, the other parent can file an enforcement against you. Parents must follow all notice requirements in their court order. 

Some court orders may prohibit, or enjoin, a parent from removing the child from their county of residence or the State of Texas. These types of court orders are serious. It usually means the court wants to ensure that the parent cannot leave with the child, making it difficult to get the child back. 

Suppose your court order does not explicitly say you have to notify the other parent to travel with the child within the United States. In that case, you can travel freely with your child during your periods of visitation. 

At all times, parents have the right to receive information from the other parent about their child’s health, education, and welfare. Texas Family Code 153.073(a)(1). Parents also have the right to discuss a decision with the other parent concerning their child’s health, education, and welfare before the decision is made. Texas Family Code 153.073(a)(2).

Many courts read these laws to include travel plans for the child. Good co-parenting and communication are vital for children once their parents have separated. Also, you would want the other parent to do the same when they travel with your child, especially if it is out of state.

Similar to the Children’s Bill of Rights, many Texas counties and courts have adopted the Loving and Caring Order. This order requires parents to notify each other of events concerning the child, including:

“vacation plans which include the children, including the itinerary and location of the children and a telephone number where the children may be reached if the children are to be absent from the residence of a parent for more than twenty-four consecutive hours during any period of possession by parent.” 

Does the other parent have to tell me when they travel internationally with our child?

You must read your court order. If your court order says a parent must let the other parent know about plans to travel internationally with the child, then the parent must let the other parent know. Failure to tell the other parent may be a violation of the court order. If a parent does not follow their court order, the other parent can file an enforcement against them. Parents must follow all notice requirements in their court order. 

International travel is different from domestic travel, or traveling with the child within the United States. International travel requires a passport. Other countries may require immunizations or an immunization record before traveling or before re-entry into the United States. There may also be travel warnings from the U.S. Department of State for certain counties. The Covid-19 pandemic has also affected international travel.

If you have concerns about the international abduction of your child by the other parent, you should speak with an experienced family law attorney about protections for your child. If the court finds credible evidence of international abduction risk factors, the judge can take certain measures. Texas Family Code 153.501 and 153.502.

Court orders can prevent a parent from applying for a passport for a child, and the order can include injunctions on traveling abroad. Texas Family Code 153.503.  An attorney can help draft these provisions for you.

How do I get a U.S. passport for my child?

The U.S. Department of State regulates passports for United States citizens.

All children under age 16 must apply for a passport in person with two parents or guardians using Form DS-11. You cannot renew your child's passport using Form DS-82. Passports for children under age 16 are only valid for five years. Read more about passports for children under age 16 here

Most applicants aged 16 through 17 must apply in person using Form DS-11. Passports for applicants 16 and older are valid for 10 years. Read more about passports for children ages 16 through 17 here.

The other parent does not agree to our child getting a passport. What can I do?

The U.S. Department of State requires both parents to sign off on a U.S. passport for a child under 16. If the other parent does not agree to sign off on a passport, you may need to go to court to get a court order or file a modification to change your current court order. You can ask the judge to order that only one parent can consent to the child getting a passport.

If parents are appointed as joint managing conservators of the child, they usually share rights and duties over the child. These rights and duties explain the decisions a parent can make for their child. Texas Family Code 153.134. These rights and duties are either:

  1. Independent to each parent, meaning each parent can decide without the consent of the other parent;
  2. By the joint agreement of the parents, meaning the parents must agree to the decision; or
  3. Exclusive to one parent, meaning that parent is the sole decision-maker. Texas Family Code 153.071.

Some of the rights included in this section include the right to:

  1. apply for a passport for the child; 
  2. renew the child’s passport; and 
  3. maintain possession of the child’s passport.

Usually, if a parent’s consent is required to issue a passport, that parent should provide the consent. The consent should be in writing. Because the passport application process can take time, the parent giving consent should try to sign off on the paperwork at least 10 days after the other parent requests it. If you do not consent, you must have good cause for not signing off on the paperwork. If neither parent has the power to make a final decision on passports or if you do not understand your rights and duties, then you should contact a lawyer for guidance.

If a parent is named a Sole Managing Conservator, they have the exclusive right to apply for a passport for the child; renew the child’s passport, and maintain possession of the child’s passport.  Texas Family Code 153.132(10). This means a sole managing conservator does not need the other parent to sign off on U.S. Department of State Form DS-11. You will need a certified copy of your court order to prove you have this exclusive right.

Which parent gets to keep our child’s passport?

As discussed above, the parent who gets to keep or maintain the child’s passport will depend on the conservatorship orders. If you and the other parent are having trouble communicating about who gets the child’s passport, you should speak with a family law attorney to discuss your options.

If you are getting a court order or modifying your court order, then you should make sure your order has language on when and how a parent must deliver and return the child’s passport to the other. 

What kind of notice should I give the other parent when I plan to travel internationally with our child during my period of possession?

If your order requires you to give written notice to the other parent, then you must send them an email, letter, fax, text message, or message through a co-parenting application such as Our Family Wizard or AppClose. Your order will also say what the notice should include.

At minimum, your written notice should include the following information about the child’s travel:

  1. any written consent form for travel outside the United States that is required by the country of destination, countries through which travel will occur, or the intended carriers;
  2. the date, time, and location of the child's departure from the United States;
  3. a reasonable description of means of transportation, including, if applicable, all names of carriers, flight numbers, and scheduled departure and arrival times;
  4. a reasonable description of each destination of the intended travel, including the name, address, and phone number of each interim destination and the final travel location;
  5. the dates the child is scheduled to arrive and depart at each such destination;
  6. the date, time, and location of the child's return to the United States;
  7. a complete statement of each portion of the intended travel during which the conservator providing the written notice will not accompany the child; and
  8. the name, permanent and mailing addresses, and work and home telephone numbers of each person accompanying the child on the intended travel other than the conservator providing the written notice.

A parent should provide this written notice to the other parent as soon as they have the information or at least twenty-one (21) days before the day planned for the child’s international travel. This can give a parent time to discuss any concerns about travel with the other parent. 

Can I stop the other parent from traveling to a dangerous location with my child?

If a parent has safety concerns for the child’s international travel, then they have the option to file a lawsuit and ask for temporary orders or a temporary injunction on the travel. Read about how temporary orders can stop someone from leaving the United States with a child here.

Many parents and courts will look to the U.S Department of State’s travel warnings when determining whether a location is considered “dangerous.” Courts will also consider whether the country is a partner under The Hague Abduction Convention. The Hague Abduction Convention is a treaty that many countries, including the United States, have joined. 

The purpose of the treaty is to protect children from the harmful effects of international abduction by a parent and to organize or secure the effective rights of access to a child. The idea is that custody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence. But, U.S. court orders may not be recognized in other countries, especially those that are not partners to the Hague treaty. Read more about the Hague Abduction Convention treaty here. You must speak to a family law attorney immediately if your child has been abducted and is in another country. 

Parents can also agree that they will not travel to certain countries. Talk to a family law attorney about preparing an order that addresses travel to a potentially dangerous location.

What if long-distance travel is necessary for me to exercise my visitation ?

Long-distance travel may be necessary when parents live in different states or countries. Travel arrangements may be discussed when parents are divorcing or separating. If this is the case, then parents should make sure their court order contains specifics on how long-distance travel for the child will be handled. These arrangements may include which parent will purchase airline tickets, which airports can be used, whether a parent will accompany the child on the plane, and what happens if the travel is canceled. 

If a parent moves out of state or out of the country after a court order has been made, then a parent may need to file a modification to address how long-distance visitation will be handled. If a parent does not want their child to travel by air or other means, then Texas courts have the ability to restrict the mode of transportation for a child. Texas Family Code 153.257. Speak with a family law attorney to help you address any long-distance travel arrangements for your child.

What happens if a parent violates a travel provision in our order?

A parent who violates the terms and conditions of a court order may face an enforcement lawsuit. For violations of an order’s travel provisions, a parent may be liable for all costs incurred due to that person's noncompliance with these provisions. These costs may include, but are not limited to, the expense of nonrefundable or noncreditable tickets, the costs of nonrefundable deposits for travel or lodging, attorney's fees, and all other costs incurred seeking enforcement of any of these provisions. Additionally, the enforcement may open the door for the court to make clarifying orders of travel provisions to prevent future violations by a parent.

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