Separated parents: taking children overseas for holidays — do you need the other parent's permission?

Planning a family holiday should be an exciting time filled with anticipation and joy. However, for separated or divorced parents, the prospect of taking children overseas can quickly become a complex legal maze fraught with uncertainty and potential conflict. Child abduction is when one parent takes a child overseas without one of the parent’s express agreement, it’s a serious scenario with potentially long-term consequences. Understanding your rights and obligations under New Zealand law is crucial to ensuring your holiday plans don't turn into a legal nightmare.

The legal framework: your obligations under New Zealand law

When parents separate or divorce, the legal landscape around children's travel changes significantly. Under the Care of Children Act 2004, both parents typically retain guardianship rights unless a Court Order states otherwise. This means that major decisions affecting a child's welfare, including international travel, require careful consideration of both parents' rights.

The fundamental principle governing family law in Christchurch and throughout New Zealand is that the children's best interests must always come first. This legal framework creates specific obligations for parents planning overseas travel, regardless of who has day-to-day care of the children.

Do you need permission from the other parent?

The short answer is: yes, in most cases but it depends on your specific circumstances. If you share legal guardianship or parental responsibility with your ex-partner (which is the default position unless varied by a Court Order), you generally need their consent before taking children overseas. Note: this requirement exists even if you have primary care of the children or if they live with you most of the time.

Several factors influence whether you need explicit permission:



Guardianship arrangements: if both parents remain legal guardians, consent is typically required. However, if one parent has sole guardianship by Court Order, they may have broader decision-making authority.

Existing Court Orders: Parenting Orders or Separation Agreements may include specific provisions about international travel. These documents might outline notification requirements, advance notice periods, or automatic consent provisions for certain circumstances.

Duration and nature of travel: While the law doesn't distinguish between short holidays and extended trips, practical considerations often differ. A week-long holiday to Australia might be viewed differently than a three-month European adventure.

The safest approach is to obtain written consent from the other parent well in advance of your planned departure. This protects both you and your children from potential complications at the border (especially if you have different surnames, in which case travelling with birth certificates is also recommended).

What happens if one parent withholds consent?

Unfortunately, disagreements about overseas travel are common in separated families. When one parent unreasonably withholds consent, it can create significant stress and disappointment, particularly when holiday bookings have already been made.

If you believe the other parent is being unreasonable, you have several options:

Direct negotiation: sometimes, concerns can be addressed through open communication. The other parent may have specific worries, whether about safety, duration, or missing contact time, so talking directly may help you understand their worries and find compromises.

Mediation: Family dispute resolution services can help parents reach agreements without the need for court intervention. Mediation is often faster and less expensive than civil litigation in Christchurch courts, with the additional benefit of preserving co-parenting relationships.

Legal intervention: when all other approaches fail, court action may be necessary. This is where experienced family lawyers in Christchurch can provide invaluable guidance.



Applying to the Family Court for permission

When agreement cannot be reached, the Family Court has jurisdiction to make decisions about children's international travel. The court process involves several key steps and considerations.

• You'll need to file an application seeking the court's permission to take the children overseas. This application must include detailed information about your proposed travel, including destinations, duration, accommodation arrangements, and how you'll maintain the children's connection with the other parent during the trip.

• The court will examine various factors when making its decision. These include the children's best interests, the purpose and duration of travel, arrangements for maintaining contact with the other parent, and any risks associated with the trip. The court may also consider the children's own views, depending on their age and maturity.

• Court processes can take several weeks or months, so early action is essential. In urgent situations, the court may expedite proceedings, but this cannot be guaranteed. Planning ahead is always preferable to last-minute applications.

• While you can represent yourself, the complexity of family court proceedings often makes professional legal advice worthwhile. Legal Aid is not guaranteed; however, it may be granted to prevent a child from being taken without consent from New Zealand if you meet the financial and merit requirements. Seek legal advice from an experienced family lawyer as soon as you can. Family lawyers can help navigate the process efficiently and present your case effectively.