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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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I have a court order and in the court order it states that

Customer Question

I have a court order and in the court order it states that "in the event of a conflict regarding vacation times, Mother shall have preference in odd-numbered years and Father shall have preference in even numbered years.
I am trying to book a vacation next year with my daughter and my ex wife if declining it. Can I just book the vacation anyways since I have the preference in 2016.
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

What state is this in regards ***** ***** is it domestic travel?

Customer: replied 1 year ago.
I am in California and I am looking to take my daughter with me to Hawaii to visit my family.
Expert:  LegalGems replied 1 year ago.

If there are no limitations on out of state destinations,and the order clearly states that the father has preference in even number years, then on the face of the order the father could make the travel arrangements. However, if the mother has a legitimate reason for declining the proposed vacation (medical reasons; extracurricular activities of the child that would be negatively affected by for example, missing scheduled events) and challenges it in the courts, the court does have the discretion to modify the order. One can request declaratory relief from the court, to ensure that the vacation will be permitted (by filing a motion). If the court determines that the other parent was unilaterally and unreasonably contesting the issue, they have the authority to award legal costs and fees to compensate the other parent. Typically, one parent would write a letter to the other parent, stating the relevant part of the order, and asking on what basis they feel they have standing to contest the vacation, requesting a reply date, with a statement that should consent be arbitrarily withheld, one will file a motion with the court, and request attorney fees.

Advice from the CA courts homepage:

hat happens if I want to travel out of state or the country with my children but I cannot find the other parent to get permission?

A: Usually, you need the other parent’s permission to travel out of state with your children, especially if you want to leave the country or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.

You should also closely look at your existing custody and visitation court order and make sure that there are no restrictions on you leaving the state or your country with the children. If there are limits on whether you can take your children outside of your country or state, you usually need a court order giving you special permission to travel.

If the judge gives you an order letting you travel, make sure you get it in writing. Also make sure the order has everything you need, including the dates of travel and any other information so that you can travel with your children safely. Carry a copy of the order on you everywhere you go when you travel. You may need to show it to the border patrol, airport staff, or any official that asks to see it.

This is accessible here: http://www.courts.ca.gov/1193.htm

Expert:  LegalGems replied 1 year ago.

Here is the code that authorizes the award of attorney fees, so that you can reference it:

271. (a) Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award. (b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. (c) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property.

That code is located here:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=270-274

Customer: replied 1 year ago.
When I proposed the dates she said she was having a family reunion and that the following weekend she will be taking our daughter camping. Then when I offered to slightly modify my dates she said that he family will be here those dates too and still declined.
Expert:  LegalGems replied 1 year ago.

If the order gives the father preference, and there are no out of state restrictions, the court will generally enforce the order as it is written (otherwise, absent a compelling reason for modification, the judge would appear to be inconsistent, which defeats the very purpose of a court order). However, since each judge is given discretion in custody/visitation (using the "best interests of the child" standard) it is impossible to guarantee that if the other parent files an objection that the court would permit the visitation. But if the court order states father has preference for even years, it would appear that the other parent acted without concern for the court order by scheduling a reunion during that year. If neither party brings an action, and the other parent precludes the child from the vacation time, a contempt action may be brought- in order to find contempt, this requires a showing of a willful and knowing violation of a court order- and the court can sanction the party by ordering the party in contempt to reimburse the other parent for out of pocket expenses.

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