Custody and Traveling with Your Child

Many of our Pittsburgh child custody clients have questions when a custody determination is being made as to how this agreement will affect their ability to travel with their child(ren). Often times, the parties’ abilities to travel and how frequently they may travel is addressed in a Consent Order for Custody which is filed with the court. However, there are still cases addressing this specific issue where a custody order leaves questions as to what type of travel is permitted with your child(ren).

The Pennsylvania Superior Court recently addressed the issue of parents’ travel in a custody case in October 2012. Mother wanted to travel to Ecuador with her daughter to visit extended family and stay there for three weeks. The Superior Court analyzed the issue of whether it was an error of law for the trial court to deny the Mother the right to travel to Ecuador when she had previously been granted sole legal custody of the Child.

This case, M.P. v. M.P., 2012 PA Super 215 (2012), addressed the issue of a Mother’s travel to Ecuador with her Child in light of the fact that the Mother was previously given sole legal custody of the Child. The Mother in this case wanted to travel to Ecuador with the parties’ minor child to visit the child’s grandparents on their farm, and the child’s aunt. Father opposed this travel, claiming concern for “different diseases” in Ecuador and the Child’s health and well-being, specifically if the Child became sick and her current health insurance was not accepted. The trial court held that Mother was prohibited from traveling to Ecuador with the Child, after which Mother filed an appeal to the Superior Court.

The Superior Court looked more in depth at what exactly “legal custody” meant and how it applied to this situation, as Mother here had sole legal custody of Child when the trial court decided she could not travel to Ecuador. The Court stated that “[w]hen one parent has sole legal custody, that parent has final authority to make decisions, regardless of whether the other parent agrees or disagrees.” The Superior Court ultimately determined that the trial court had abused its discretion in prohibiting Mother to travel with the child, given the fact that she had sole legal custody. The trial court had allowed Father to counter Mother’s decision to travel with their child, which the Superior Court decided “in essence gave him the control, i.e., the power that he would have if he had shared legal custody.”

Furthermore, the Superior Court found it significant that the trial court’s decision was made in light of the fact that Father had not exercised his supervised visitation time for eighteen months, and during this time, had no input into any decisions made by Mother on the child’s behalf and did not see the Child for this time period. The Superior Court stated that these facts, coupled with the parties’ previous agreement on Mother’s sole legal custody, emphasized the fact that Father “believe[d] Mother ha[d] made proper decisions regarding the child’s best interests” in the past.

Additionally, the trial court justified its prohibition of Mother’s travel by stating that although Ecuador is a signatory to the Hague Convention, Ecuador did not comply with the Hague Convention in recent years, which it concluded “was not in the best interest of the Child to visit a country which may result in her being separated from her natural father for a long period of time.” However, this was not developed from testimony in the case, but rather the trial court gained this information through its own internet search taking place after the initial hearing. Mother was not advised of this information before filing her appeal to the Superior Court. Therefore, the appellate court did not find this information significant and did not rely upon this when reversing the lower court’s decision.

The Superior Court ultimately granted Mother permission to travel to Ecuador with Child without Father’s consent. The Superior Court agreed with Mother’s argument that the trial court’s decision “contravened” the parties’ agreement – and thus, if Father was able to prohibit Mother from traveling with the parties’ child, this would have essentially awarded Father with shared legal custody.

The takeaway from this case regarding traveling with your child is to include specific language in your custody agreement. Make sure you address travel in your agreement so that this type of litigation does not become necessary in your case. Contact one of our experienced child custody attorneys at Lisa Marie Vari & Associates today for assistance with drafting a specific custody order for you and your children.