Traveling With Your Children After Divorce in New York: Vacations, Passports, and Out-of-State Trips

Before anything else, separate the two ideas the law treats very differently. A vacation is a temporary trip after which the children come home to New York. A relocation is a permanent or long-term move of the children’s primary residence. These are governed by entirely different rules.

An ordinary vacation — a week in Florida, a road trip to see grandparents, a cruise — does not require you to prove anything to a judge, as long as it does not violate your custody order. A relocation does. Moving the children’s home, even within New York, requires either the other parent’s consent or court permission under the standard from Tropea v. Tropea, 87 N.Y.2d 727 (1996), which asks what is in the children’s best interests. If you are weighing an actual move rather than a trip, that is a separate and serious process — see our articles on child relocation and the Tropea relocation standard. The rest of this article is about travel, not moving.

Most New York custody orders and settlement agreements contain a travel provision, and most parents have never reread it. Pull yours out before you book. Common terms include:

• Advance written notice. Many orders require you to notify the other parent in writing a set number of days before any out-of-state trip — often 14 or 30 days.
• A written itinerary. Flight numbers, destination address, dates, and a phone number where the children can be reached.
• Contact during the trip. A requirement that the children be able to call or video-chat the other parent on a regular schedule.
• Limits on international or non-Hague travel. Some orders require written consent — or a court order — before the children leave the country.
• Passport custody. A term stating which parent holds the children’s passports between trips.

If your order has these terms, follow them to the letter. Sending a clear, documented notice is not just courtesy — in a custody dispute, the parent who communicates in writing and follows the order looks reasonable, and the one who springs surprises does not.

For travel within the United States, the general rule is simple: during your own scheduled parenting time, you may take the children on vacation out of state unless your order says otherwise. You do not need the other parent’s permission to drive the kids to Pennsylvania for a long weekend if it falls on your days and your order is silent on the point.

Two things change that. First, if the trip cuts into the other parent’s scheduled time, you need their agreement or a modified schedule — you cannot simply take days that belong to them. Second, if your order requires notice or consent for out-of-state travel, that requirement controls regardless of whose time it is.

International trips add a federal layer that has nothing to do with your divorce judgment: the passport itself. Under U.S. State Department rules, applying for a passport for a child under 16 generally requires the consent of both parents or legal guardians. In practice, that means one of three things:

• Both parents appear together when the application is submitted; or
• One parent appears with the child and submits the other parent’s notarized Statement of Consent (Form DS-3053); or
• The applying parent provides evidence of sole legal authority to obtain the passport (such as a court order granting sole legal custody or sole authority over travel).

This is why so many international trips stall: a child already has a passport but the other parent holds it, or the child needs a first passport and the co-parent will not sign. If you anticipate travel abroad, address the passport early — ideally as a written term in your settlement agreement or custody order specifying who holds the passport and how renewals are handled.

Parents who worry about a child being taken abroad and not returned have tools as well. The State Department’s Children’s Passport Issuance Alert Program (CPIAP) lets a parent be notified if someone applies for a U.S. passport in their child’s name. And the Hague Convention on the Civil Aspects of International Child Abduction provides a return mechanism for children wrongfully taken to or kept in another member country — protection that does not exist for travel to non-member countries, which courts scrutinize far more closely.

Sometimes the concern is not paperwork — it is real fear that the other parent intends to leave with the children and not return, particularly to a country with family ties abroad. New York courts take this seriously and can impose protective conditions before international travel, including:

• Requiring the traveling parent to post a bond or provide a detailed, verifiable itinerary;
• Ordering that passports be surrendered to a neutral party, an attorney, or the court between trips;
• Restricting travel to Hague Convention countries only; or
• Requiring written, notarized consent with a firm return date.

It is worth knowing that removing or retaining a child outside the United States with intent to obstruct another parent’s custodial rights can be a federal crime under the International Parental Kidnapping Crime Act. If you have a genuine abduction concern, do not wait until tickets are booked — raise it with counsel well in advance so the court has time to act.

The vast majority of travel disputes are preventable. A short, practical routine keeps almost every trip out of court:

• Reread the order before you book. Check the notice period, consent terms, and any international limits first — not after the deposit is paid.
• Give written notice early. Send dates, destination, flights, lodging address, and a contact number through your co-parenting app or email, well ahead of the deadline.
• Build in contact. Offer a regular call or video schedule so the other parent stays connected to the children while they are away.
• Offer make-up time. If the trip touches the other parent’s days, propose equivalent make-up time rather than asking them to simply absorb the loss.
• Confirm passports months out. Check expiration dates and possession early; passport processing and consent can take weeks.

When parents handle travel this way, the answer to “can I take the kids?” is almost always yes — because there is nothing left to fight about.

When a co-parent unreasonably refuses to consent — or when you genuinely believe a trip should not happen — either parent can bring the question to the court. In Erie County and across Western New York, a parent can file a motion or petition (and, when time is short, an order to show cause) asking the court to permit a specific trip, to set travel conditions, or to add a clear travel provision to an order that lacks one. The court decides based on the children’s best interests, the specifics of the itinerary, and any real risk involved.

The better long-term fix, though, is a well-drafted order. If your current custody order is silent or vague on travel, that gap will resurface every summer. Adding precise terms — notice, itinerary, contact, passport custody, and international limits — through a post-divorce modification or a stipulation can end the recurring conflict for good.