Traveling with kids during Virginia divorce

Posted on May 19, 2017 by Katie Carter

Before there’s a specific custody agreement in place, everything is in flux—including custody and visitation. In fact, before this, you probably never thought of things like parenting time, custody, or visitation, you just did what you had to do to make sure the kids were adequately taken care of. Well, now, everything has changed, and you’re left wondering what you (and your soon to be ex husband) are really allowed to do since, at least for now, there’s nothing specific in place that says what you can and can’t do. (And, if he’s a pain in the butt—as all too many are—he’s telling you what he thinks you can and can’t do, which leaves you feeling even more confused.) What are the rules when it comes to traveling with the kids during Virginia divorce? What are you allowed to do?
Isn’t it funny how something you never gave a thought to before – and, frankly, something that was never a problem before – can somehow, suddenly become so all important? (And, obviously, I don’t mean funny as in funny haha, but more like funny as in it’s annoyingly ironic.)
Technically, until there’s a custody agreement or order entered by the court in place, there is no specific custody or visitation. You both have custody, and your rights as equal. As a result, you are free to take the children when and where you like—but, then again, so is he. Of course, that’s all well and good, but what happens when your when and where don’t mesh well with his when and where? What if you have legitimate concerns about their safety, or about whether he’ll bring the children back? What if he’s alleging that YOU’RE unsafe or unreliable or won’t return?

Traveling with kids during Virginia divorce

Without a custody agreement or order in place, you’re technically free to travel with the kids. So is he. It might not be that easy, though, so you’ll want to tread carefully.
In general, it’s best and easiest if you let him know of your plans in advance, and provide details about where you’re going, where you’ll be staying, and how you can be reached. In some cases, by extending him this courtesy, you ensure that he’ll extend you the same courtesy, should he plan a trip with the children in tow as well.
It’s not always that easy, though. You might be thinking, “if it were that easy between us, I wouldn’t be here, reading this article,” and that’s probably a pretty fair criticism. After all, a lot of things can come up when it comes to traveling with kids during Virginia divorce.

I’m afraid he won’t bring them back.

Usually, this is more of a fear than an actual reality. Most people can’t up and leave with the kids and never return and, even if they did, there’d be recourse available to you.
If you’re nervous, though, I’d suggest that you have him sign something saying where he’s going and when he’ll return the children to you—that way, if he doesn’t, you’ll at least have something to show the police or the judge, if you file any kind of emergency custody hearings.
As far as jurisdiction is concerned, another state won’t become the child’s home state until the child has lived there for a period of time (the amount of time varies from state to state, depending on its laws, but in Virginia it takes six months). Your child’s father is not going to be able to take the children to Texas and then immediately file for custody and visitation in Texas—forcing you to either go to Texas to litigate or risk losing your children. If he were to leave and you believed that he wasn’t planning on returning, you could file emergency custody petitions. It might not be easy to get him to agree to sign something in writing, but it’s a way to protect yourself, and certainly worth a shot.
In cases where parents have taken children away like this, over the objection of the other parent, I have seen judges order that the children be returned to the Commonwealth. The court can’t say that you can’t go wherever you want whenever you want, but the court can restrict your ability (or his) to move away with the children.

I want to travel internationally, and he won’t let me.

International travel is often more complicated than domestic travel. For one thing, there’s always a concern that a parent traveling internationally will go to a country where the children wouldn’t be returned to the U.S., and that’s certainly problematic. For the most part, it really isn’t an issue—but in a divorce or custody case, I often find that parents have irrational fears about what could happen with the child in the other parent’s care.
As a result, we often see international travel restricted until a custody agreement or order can be reached. Even then, we can put safeguards in place, like that the child can travel so long as the parent traveling with him provides evidence of round trip tickets, contact information, or an address where he will be staying. Additionally, we sometimes include provisions that allow one parent or the other to keep hold of the child’s passport in between trips. It really all depends on the specific circumstances, the countries involved, and the complexities of the relationships between the two parents.
If you’ve got family overseas, though, chances are good we’ll be able to work out a situation that allows you to take the child to visit—but, of course, that same courtesy will likely be extended to your child’s father, should he wish to travel internationally with the child too.

There are safety concerns with him traveling with kids.

If there are safety concerns with your children traveling with their father, you’ll want to talk to a licensed Virginia custody attorney as soon as possible to determine what the best course of action is to protect them. Everything depends on the type of dangers your children will be facing, so it’s hard to say, generally speaking, what your best protective steps should be.
Traveling with kids during Virginia divorce is complicated, but that doesn’t mean that it won’t be possible to work something out between you and your child’s father—or, worst case scenario, take your concerns in front of a judge. If you need more information about custody cases in Virginia, or want to learn more about what to expect, request a free copy of our custody book.  If you’re preparing to go to court on custody and visitation issues and you want to either represent yourself or check up on your current attorney, consider attending our Custody Bootcamp for Moms seminar.  For more information or to schedule a one on one appointment with one of our custody attorneys, give our office a call at (757) 425-5200.