I want to take my children on vacation. DO I need his permission?

It depends on whether or not a petition for divorce has been filed. If a petition for divorce has been filed, you should get his permission to take them to New York. But actions such as your husband's are common in a divorce because of the emotions involved in the process. Your idea for mediation is a good one and one that you should push for.

If you have already signed and filed the Petition for Dissolution, you need to read the Standard Temporary Restraining Orders on the second page of the Summons. Those orders prohibit you from taking the children out of state without written permission or an order of the court. That doesn't mean you cannot take them; in all likelihood the Court would grant a request from you to let you take them for a visit to family as part of their summer vacation. If you have not signed and filed your initial paperwork, technically you can take them without his consent but I would advise against that step. First because you might buy the tickets, only to be served with his Petition and Summons just prior to leaving - then you can't go without written permission or court order, because those Standard Temporary Restraining Orders are applicable to the non-moving party upon service. Second, you really don't want to be perceived by the Court as antagonizing your future opposing party. Taking the kids against his wishes, even if papers haven't been filed, is not consistent with a wish to mediate. On that note I want to discuss mediation: a lot of parties choose mediation because it seems less expensive and there is a tendency to want a "friendly" or "amicable" divorce. I suggest that if you and your spouse were capable of working things out in a friendly or amicable manner you would not be at this impasse with the vacation, and you might not even need a divorce. Mediation only works if BOTH PARTIES are committed to keeping the dissolution process civil and to move it forward. Otherwise it can be a huge waste of time and money. I see many, many clients who come to me after an extensive, expensive, failed mediation process. That doesn't mean we end up going to trial - most cases will settle if properly worked. But, if the case does not settle, you are still on track for trial and you don't have to start at the beginning with a new attorney. I think you should consult with an attorney in your area. Discuss your custody concerns, support concerns, and assets and debts. That attorney will be able to tell you if you and your spouse appear to be good candidates for the mediation process, or not.

If divorce papers have not yet been filed, you are not prohibited from taking the children on vacation without permission. Understand that while you are gone, or even immediately prior to leaving, your spouse may try to make it look like you have abducted the children. You need to consult an attorney who can help you with this. There are ways to protect yourself and still allow you to be the parent you want to be. Mediation is a wonderful idea. In fact, I only mediate and collaborate the divorce cases that come to me. Your husband, however, has to see a benefit to it and has to want to participate in it. As to your immediate concern, make sure you have notified him ahead of time of your travel plans. This way, if he does try to turn it into something ugly, you can be the rational, reasoned voice and show the court that there was never an intent to take the children away from their father and that you had, in fact, given him ample notice. He may try to prevent you from taking them by filing for protective orders, but, really... what judge is going to say that you are acting harmfully towards the children by taking them on vacation to NY? Especially if it's something you've done on an annual basis? As to your desire to mediate, there are ways to approach a difficult spouse in this respect. First, is education. Give your spouse as much information as you can, without overwhelming him. Understand that in the divorce time line, it is very common for one spouse to be ready for the marriage to have ended a year ago and the other to still be struggling with the idea that it's even happening. Trying to force a faster pace will only land you with greater resistance and hostility. Working with a divorce coach is an excellent place to start. There are also many community education classes that you, he, or together you can attend. I lecture at Second Saturday, to be held one week from today, June 11, at Riverside City College. This may be an excellent resource for him because he will have an opportunity to hear from a litigator (handles contested divorce cases in court), a financial specialist, a mental health professional, a real estate professional, and a mediator/collaborative attorney (me). All of these professionals work in divorce cases. Whether he agrees to attend, or not, it would be of great benefit for you because it will answer many of your questions on how best to proceed. I also have a lot of information on my web site, including cost comparisons, descriptions, and real life benefits of litigation, mediation, and collaboration. This is not legal advice nor does it create an attorney-client relationship. This information is general in nature and SHOULD NOT be relied upon in your individual situation. You should consult an attorney directly who can best analyze your information and documentation and advise you accordingly. Good luck.