It’s vacation time, summer and sunshine. So far so good. But in many families with separated parents, the subject of vacations leads to difficulties. Who is allowed to go on vacation with the children and where, and what if there is no agreement? What about vacations that one person has booked assuming that the other parent will look after the children, which is then not the case? Who is allowed to keep the children’s travel documents and who has to cover the costs of the vacation? Questions upon questions that can arise and with which the courts are repeatedly confronted when the parents seem unable to reach an agreement between themselves.
Who is allowed to take the children abroad?
As is so often the case, this depends on custody. If one parent has sole custody of the child, the other (non-custodial) parent needs their consent to travel abroad with the child. The parent who does not have custody cannot therefore travel abroad with the child without the consent of the parent with custody. The parent with sole custody, on the other hand, can also travel with the child against the will of the non-custodial parent.
The situation is different with joint custody. Per se, both parents can make decisions about the child’s vacation trips. For example, if there is a contact arrangement, each parent can initially decide for themselves whether and where to take the child on vacation during “their time”. So if you want to take the child to Italy during the agreed vacation week in the summer when you have the child, you will normally not need the consent of the other parent. For this purpose, the child’s passport must also be handed over by the parent who is keeping it. If you are planning a longer trip to a distant, perhaps not entirely safe country, it will be necessary to inform the other parent and reach an agreement with them. In this context, parents should observe the principle of mutual consent. This means that the parents should consult with each other on important issues concerning the child and also inform the other parent and seek their consent. This also applies to vacation trips for the child.
What if there is no agreement on vacation contact rights?
If no agreement can be reached on vacation contact rights, i.e. who should look after the children when and how during the vacations, the competent district court can be called upon to make a decision. The court focuses on the best interests of the child and examines the specific circumstances. However, it should be kept in mind that court decisions require a certain lead time and therefore, in the event of a dispute, you should contact the court as early as possible. If you want to obtain a court decision at the end of July for a planned trip at the beginning of August, this will not work out. It is generally advisable, especially in situations of family conflict, to (precisely) regulate contact rights and vacation contact rights so that there is clarity about who can take the child on vacation, when and where, and misunderstandings can be avoided. If parents are in agreement anyway, it will not be necessary to agree exactly who will take which week of vacation with the children in which year. However, if parents do not (currently) have a good basis for communication, more detailed arrangements can be very useful to avoid disputes.
Who pays for the vacation?
In principle, the person who goes on vacation with the child pays for the child’s vacation. If, for example, the parent who pays child maintenance has (vacation) contact rights and would like to take the child on a skiing vacation for a week in winter and to Italy for a week in summer during “their time”, they can neither claim the costs of the vacation trips from the parent with primary care nor deduct them from the child maintenance. The costs for activities within the scope of the right of contact must therefore be paid by the parent with the right of contact. However, the other parent, who is the main carer, must provide a sufficient change of clothes.
What to do if the vacation trip is thwarted for no reason?
If you can’t go on your long-awaited vacation because an original agreement or even a court contact arrangement is suddenly not honored by one party for no reason, this can lead not only to dissatisfaction but also to financial loss. It is often no longer possible to cancel vacations that have already been booked at short notice free of charge. If a parent, contrary to a family law agreement, suddenly does not want to hand over the child or otherwise violates obligations to cooperate, it may be possible to claim these frustrated vacation expenses from the parent who violated the agreement in accordance with the principles of compensation law. The same applies if one parent, trusting that the other parent will adhere to the contact arrangement, has booked a trip for themselves during their “child-free” time and is then unable to go because the child cannot be looked after by the other parent as agreed. In principle, (court) contact arrangements, regardless of whether they are an agreement or an order, must be adhered to by both parties. This creates trust and continuity, which is (not only but also) important for the child. Of course, it is always possible to deviate from existing arrangements by mutual agreement, but this must suit both parties.
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