In the recent case of M.P. v. M.P., 2012 Pa. Super. 215 (Oct. 5, 2012), the PA Superior Court dealt with the question of whether a Mother could take her small child to Ecuador without Father's permission. The court found that in the specific circumstances set forth below, Mother could travel without Father's consent.
In M.P. v. M.P., Mother had sole legal and primary physical custody. Father had supervised visitation for two hours a week but had not exercised it in 18 months. Mother desired to travel to Ecuador for three weeks to visit her family with the child. The trial court determined that Mother could not do so because Ecuador had a history of non-compliance with the Hague Convention. The court believed that the risk of the child remaining in Ecuador and separated from her natural father was too great and that Mother could simply set up video conferencing to communicate with her family.
The Superior Court overturned the trial court's decision. The Superior Court determined that Father had consented to grant Mother sole legal custody. As the sole legal custodian, Mother had the right to make any final decision on the matter. By allowing Father to contest Mother's decision, the trial court essentially granted him shared legal custody in contravention of their agreement.
Further, the trial court performed its own Internet search on the Hague Convention and used such in its opinion. This procedural failure did not grant Mother time to prepare a brief on the issues before trial. This was particularly important as Mother, after the trial court opinion, produced significant evidence to show that Ecuador has been in compliance with the Hague Convention in recent years.
Custody is complicated. When you bring in international travel and the Hague Convention, it becomes even more convoluted. If you wish to travel internationally with your child, it is vital that you obtain counsel to assist you. This case also highlights the importance of "legal" custody in the life of a parent and child.
