Too often, I see people trying to make their co-parent’s life difficult just for the sake of being difficult.  Want to take your child to the carnival?  No – it interferes with dad’s parenting time by 30 seconds.  Want to enroll your child in karate?  Sorry – mom has plans to watch paint dry with your child during her time instead.  Now that summer has arrived, the difficulties you’ve experienced all year tend to culminate in the ultimate co-parenting dispute: Vacation Time.

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Several days ago, I blogged about what parents need to know before they travel abroad alone with their child in a blog post entitled “Single Parent Traveling Internationally This Summer? Read This First.”  The blog discusses the State Department forms that are necessary for obtaining a passport and for traveling outside of the United States.  Of course, many of these forms require either the consent of the other parent, or, in the alternative, for the other parent to somehow be absent from the child’s life thereby waiving the consent requirement.

But what happens when a parent is present, involved and affirmatively withholds consent for international travel without any reasonable basis?

In a June 17, 2015 (unreported) decision, Judge Jones of Ocean County, New Jersey Superior Court answers that question.  And in great detail…

The case involved 2 ex-spouses arguing about whether their child may or may not travel to Holland and the Netherlands this summer with his mother in order to visit his maternal grandparents.

The problem was, however, that the mother unilaterally decided that she wanted to have the child stay in Holland for approximately 9 weeks, thereby depriving the father of any and all summer parenting time.  The kicker was that the mother was only going to stay in Holland for 2 out of the 9 weeks.  The father, understandably, objected.

As the Court succinctly summarized the implications of the mother’s position: “[mother]…basically seeks court permission to leave the child with the grandparents for two months over [father’s] objection, without any apparent regard for the impact such an extended stay will have on [father’s] own father/son plans this summer.”

On the flip side, the father, the Court said, drew and “unreasonable line in the summer sand” by taking the position that the child should not visit Holland at all during the summer.  He postulated that the mother presented a flight risk even though she had no history of being a “parental kidnapper”.  He further argued that if the child’s grandparents wished to see him, they should fly to New Jersey.

Waxing poetic about the value of family summer vacations, the Court found that it is “an extremely important, special and time-honored part of family life [which provides] highly unique and valuable opportunities for a child to bond with parents and other family members, while creating highly positive and lasting memories.”  For divorced parents, the Court said, vacation time should be encouraged as consistent with the “best interests of the child.”

Ironically, however, the judge noted that oftentimes parents spend time and energy warring over summer vacation plans “that are supported to be an escape from such stress and tension in the first place.”  Moreover, these parents sometimes spend all of the money earmarked for summer vacation fighting in family court about summer vacation plans.

Finding both parents’ positions wholly unreasonable, the Court found that a trip to Holland of a shorter and more reasonable length – up to 2 weeks – would be permitted.

Next, the Court tackled the issue of the child procuring a passport in order to be able to travel, which to that date, the father refused to authorize via the signing of a DS-3053 form.  This form and other requirements of travel is more fully described in my prior post.

While the Court poignantly stated that it could not “forcibly put a pen in plaintiff’s hand and force him to sign the child’s federal passport application forms” it did have power to watch over the child’s best interests and therefore granted the mother the power of attorney to apply for the passport without the father’s consent.  She was further directed to fill out the “statement of special circumstances” and to attach a certified copy of the Court’s Order.

While the Court noted that the state court could not compel the federal government to issue a passport, it hoped that it would find the “special circumstances” posed by this case “relevant and persuasive” for the Department of State to consider in determining whether to issue a passport, even without the father’s consent.

The Court’s conclusion actually put a smile on my face (which is rare when reading child custody decisions, I can assure you):

The court wishes the child a safe, happy and exciting journey on his 2015 summer vacation trip to the Netherlands, and thereafter a safe return back home to New Jersey.

So, if you are ever having issues with parental consent to summer vacation, be sure to have Judge Jones’ decision on hand.  It provides witty commentary on this age-old problem and provides some really good insight into the importance of sharing these time-honored traditions with both parents.

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head_BaerElianaEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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