Child custody can be difficult to navigate at the best of times, but when you want to take a family vacation — especially during the holidays — it can be hard to know what you can and cannot do under the law.
Child custody laws in Texas are designed to protect the rights of both parents and ensure the welfare of your children — as far as the State is concerned, spending time with both parents during their designated possession period is far more important to the welfare of your children than taking a vacation.
Even though vacations aren’t exactly prioritized, there are plenty of ways that you can travel with your children while still respecting the law.
In most cases, your answers can be found in the court order that defines your custody agreement. However, the situation is very different if you don’t have such an order..
Holiday Travel Without a Court Order
These rules only apply if there’s a court order in place. Without an order, you can take your child on vacation wherever you please for as long as you please, and your child’s other parent can do the same.
While Texas does have a list of parents’ rights and duties, you won’t find anything about vacations or visitation in the list.
Legally, you’re expected to work out any vacation plans with your co-parent, and if they don’t agree with those plans, there’s nothing they can do about it without a court order. In short, there’s no method of enforcement to ensure each parent gets to see your child when they want to without an order..
However, if you do have a court order in place, a different set of rules apply.
If you’re worried that your co-parent will take your child away from you or will take them on an extended vacation that is in some way unacceptable to you (for example, maybe it keeps them out of school or away from critical medical care), then you’ll need a court order in place to force your co-parent to comply.
Types of Conservatorships and Holiday Travel
In Texas, the court uses the term “conservatorship” to refer to court-ordered custody of a child.
There are basically three types of conservators in Texas:
- Joint Managing Conservator
- Sole Managing Conservator
- Possessory Conservator
As joint managing conservators, both parents share the rights and duties of a parent, even though the child’s primary residence may be with one parent.
Alternatively, the court can appoint one parent as a sole managing conservator, and provide that parent with more rights over the child than the other. The other parent, who would receive possession and access (which is visitation), and is known as the possessory conservator.
Even in this type of conservatorship, the noncustodial parent will likely still have certain rights, such as the right to receive information about your child’s health, education, and welfare.
When it comes to holiday travel, the custody agreement or court order may outline specifically when and how holiday travel can take place.
However, when the details aren’t clearly spelled out and you do have a court order, you generally have the right to travel with your child as much as you wish during your possession periods.
While it makes sense that you can travel as much as you want in your own State, what might be unclear is what happens when you want to go on vacation with your child to another State — or even another country.
Can a Parent Take a Child Out of Texas or the US on Vacation Without the Other Parent’s Consent?
The answer to this question largely depends on your specific custody agreement and court order.
In most cases, you can take your child out of the State or out of the country on vacation, provided it does not interfere with your co-parent’s possession time.
As you can imagine, if your co-parent sees them multiple times a week, it makes it very hard to take a vacation.
If they’re willing to give you permission to take your child on vacation during their possession time, make sure you get it written down, and speak with your attorney to confirm that this won’t violate your court order in any way.
You may want to work with your attorney to enter into a Rule 11 agreement to ensure you’re legally protected in case your co-parent changes their mind halfway through your vacation.
Some custody orders may require the consent of the other parent or the court before taking your child out of State. Others will require written notice to the other parent within a specific timeframe. It all depends on the order.
It’s very important that you clarify this as some orders will prohibit you from removing your child from the county they live in, the State of Texas, or the U.S. Temporary orders often have these provisions.
If your custody order does not clearly spell out the rules for out-of-state travel or international travel, it’s best to consult with your attorney. Ignoring or misunderstanding the terms of your custody order can lead to legal complications and even charges of parental kidnapping.
Is International Travel Treated Differently Than Domestic Travel?
While international travel is more complex than domestic travel, the same basic rules apply — if it’s not in the court order, it’s allowed during your time of possession.
However, it’s generally a good idea to get consent to travel from your co-parent in writing. Your attorney can help you draft a minor travel consent form that specifically outlines the permission being given.
It’s a legal document that shows authorities that your child has permission to travel without both parents present. They’re usually notarized, and they’re good to have just in case.
To travel internationally at all, you’ll need to get your child a passport. To do that, you must have your co-parent present in person to apply for your child’s passport if your child is under the age of 16. In some circumstances, the parent can sign a waiver in lieu of attending in person.
They may require certain immunizations before they can travel, which your co-parent may have to approve before you can have them administered to your child.
Finally, you may be concerned that your co-parent is taking your child to another country ostensibly for a vacation when, in reality, your co-parent plans to keep your child in that country permanently (international abduction of a child).
Your attorney can ask the court for certain protections if the court finds that there’s credible evidence that an international abduction could occur. The court will evaluate any risk factors and determine if these protections need to be put in place.
Do I Have the Right to Know Where My Child Is During Vacation?
As a parent, you naturally want to ensure your child’s safety and well-being at all times, even when they’re on vacation with the other parent.
In Texas, the possessory conservator generally has the right to access information regarding the health, education, and welfare of their child, and travel plans usually fall under this umbrella.
However, this does not necessarily include the right to know the child’s exact location at all times — check your court order to be certain.
Your court order may include a provision requiring the traveling parent to provide a travel itinerary, to provide notice within a certain timeframe, or other provisions. Sometimes the language for this is taken directly from the Loving and Caring Order, which states:
“Each party is ordered to notify the other party immediately verbally or in writing of any and all events pertaining to the child, including but not limited to 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.”
Note, while this allows for notification to be given verbally as written, your order may specifically require notification to be written down and, for your own protection, it’s always good to get these plans in writing and/or provide them in writing.
Communication and Documentation Are Key
Navigating holiday travel and child custody in Texas can be challenging, but with the right knowledge and preparation, it can be a stress-free experience.
As long as you take the time to gather all proper documentation while communicating clearly and properly with your co-parent, you shouldn’t have anything to worry about.
As always, if you’re not sure, check with your attorney — they’re the best resource to help you ensure everything is handled appropriately.
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