Travelling with children when separated

Sometimes separated or divorced parents have little to no trust in the other, and when it comes to overseas travel, there is often fear from the non-travelling parent that the other parent may not return from overseas with the child. This is quite common when the travelling parent has family living overseas or they have a regular connection to an overseas country.

When parents cannot agree about holiday travel, there are several options available to resolve the dispute.

The first option is to attend an out-of-court mediation. This process is more cost-effective than going to Court and may provide a settlement. It also allows the parents to come to agreement on their own terms without the Court getting involved.

The downside to this option is that it will not resolve if the other party does not agree with the overseas holiday overall, rather than just specifics such as length or place of holiday or contact for the non-travelling parent during the holiday.

If mediation does not work a parent can apply, urgently or non-urgently (depending on the safety risk and proximity to the intended travel date), to the Family Court for an Order Preventing Removal of the child from New Zealand.

If the application is made non-urgently (called “on notice”), usually the parent applying for the Order must show to the Court that they have attempted to mediate but it wasn’t successful, or there was no agreement to mediate. This application can be useful when the intended holiday is still more than a few months away.

If the travel time is much closer, if the travel is likely to cause hardship, a safety risk or harm to the child, if there is a threat from the other parent to take the child away without the other parent’s consent, or if the travel is to a non-Hague Convention country (more on this below), then an urgent “without notice” application could be made. The Court can then make an Order or direction about the travel within 24 hours of the filing of the application.

Regardless of whether an application is made urgently or non-urgently, a “border listing” should be placed with Interpol. The border listing will prevent Customs from allowing a child to leave New Zealand until the dispute is resolved. The border listing application is usually filed at the same time as the application for an order preventing removal.

The Hague Convention is an internationally ratified agreement that was signed between multiple countries to help eliminate child abduction. Countries that have signed have agreed to notify each other and arrange for the return of a child to their originating country. New Zealand is one of these countries, as are other popular holiday destination countries such as Australia, USA, Canada, United Kingdom and Fiji. Some popular travel destinations such as China, Samoa, Tonga, and United Arab Emirates (Dubai, Abu Dhabi) are not signatories.

If the Court agrees to let a child go with a parent to a non-Hague convention country, it will often order that a bond is payable to the Court for the non-travelling parent to access if the child is not returned by the ordered date of return. The bond is usually returned when the child returns to New Zealand. The bond could be used for travel to and from the non-Hague country for the other parent, and towards legal fees, if the child does not return.

If you are in a situation where you cannot agree with the other parent about overseas holidays, it is always best to talk with a lawyer experienced in this area, to obtain further advice on your options in your particular circumstances.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.