Traveling with a Custodial Child After Divorce: Balancing Parents' Rights and the Child's Best Interests

Abdul Karim Ahmad

With the arrival of the new academic year, many families renew their travel arrangements related to education, medical treatment, family visits, and other reasons. However, this issue can become more complex when parents are separated, and the travel of the child in custody becomes a point of contention between them. While one parent may view travel as serving the child’s best interests, the other may perceive it as a source of concern, fearing non-return or its impact on their right to visitation and communication. In some cases, the dispute may shift from a difference in assessing the best interests of the child in custody to a tool for mutual pressure.

Amid legal provisions, religious rulings, and social and psychological considerations, several questions arise regarding the travel of a child in custody after divorce: Does either parent have absolute authority over the travel decision? When does preventing travel serve as protection for the child? When does it become a means of pressure? How does the law view temporary travel compared to travel with the intent to reside abroad? And how significant is the child’s opinion in a decision that directly concerns them?

In this investigation, Al-Anbaa’ presents legal, religious, social, and psychological perspectives on this issue, aiming to clarify the boundaries of parental rights and the standards that should govern the decision, ultimately addressing the most critical question: Is the travel of a child in custody a right of the father or the mother? Or should the child’s best interests remain the primary criterion? Here are the details:

Initially, lawyer Heba Shamouh addressed the legal aspect, explaining that the travel of a child in custody after divorce is not subject to the absolute authority of either parent. Instead, the ruling varies depending on the status of the party wishing to travel and the nature of the travel, with the best interests of the child in custody remaining the paramount consideration. She clarified that the law distinguishes between temporary travel and travel with the intent to reside and settle abroad.

Different Regulations

Shamouh explained that Article 195 of the Personal Status Law conditions the travel of the custodial parent with the child to another country for the purpose of residence on the permission of the guardian. Conversely, the guardian is not permitted to travel with the child during the custody period without the permission of the custodial parent. Thus, the legal status of the father and mother differs according to their respective roles and the nature of the travel.

She noted that the father’s consent is not a general requirement for every temporary trip undertaken by the custodial mother, provided that the travel is not intended for residence abroad. She pointed out that tourism, medical treatment, visiting relatives, or studying for a limited period differs from relocating the child to reside and settle outside Kuwait.

Conversely, Shamouh emphasized that the father or non-custodial guardian is not permitted to travel with the child during the custody period without the custodial parent’s permission. She clarified that the law establishes different regulations in both cases, depending on which party is taking the child on the trip.

Judicial Resolution

She added that disputes between parents regarding the travel of the custodial child can be resolved through the judiciary. The Family Court Law permits the judge of temporary matters to issue an order upon petition regarding authorization for the custodial child to travel abroad or a request to prohibit such travel. This allows either party to resort to the courts when an agreement cannot be reached.

She noted that if one parent refuses temporary travel for a legitimate purpose, such as medical treatment, education, or visiting relatives, the party wishing to travel may approach the judge of temporary matters to seek travel authorization. Conversely, the other party may request a travel ban if they have serious reasons justifying their objection.

Regarding requests to prohibit travel, Shamouh emphasized that mere disagreement between the father and mother, or abstract fears of the child not returning, should not automatically result in a travel ban. She explained that the judiciary examines the specific circumstances of each case and the presence of serious, realistic reasons justifying concerns for the child’s welfare or the likelihood of non-return.

She stated that factors considered may include evidence of an intention to settle abroad, a prior refusal to return the child, actions indicating a likelihood of non-return, or if the travel would disrupt the child’s education or substantially impair the other party’s right to visitation and communication.

She added: “On the other hand, specifying the destination, duration, and a clear return date, along with the child’s stable ties within Kuwait, may be elements supporting the view that the travel is temporary and poses no real danger. She noted that assessing these matters remains within the discretion of the judiciary based on the circumstances of each case.”

Shamouh believes that the Kuwaiti legislator has laid an important foundation for balance between the father and mother; however, there is still a need for clearer regulations regarding temporary travel, particularly in defining when travel is temporary versus when it becomes travel with the intent to reside, and what guarantees can be requested to ensure the child’s return.

She proposed that these regulations consider the duration and purpose of travel, the child’s age, educational status, and health condition, the rights of the other parent, and guarantees ensuring the child’s return. She affirmed that the best interest of the child must be the primary consideration, avoiding the use of travel as a means to favor one parent’s rights over the other’s.

She stressed that the travel of the custodial child should not become a tool for pressure or an extension of the post-divorce conflict between the parents. She called for understanding and transparency when travel is temporary and serves a legitimate purpose, and for resorting to the judiciary when there are genuine reasons to fear for the child’s welfare or non-return.

Harm to the Mother

From his perspective, Dr. Ahmed Nabil Al-Husainan, a member of the faculty in the Department of Comparative Jurisprudence and Sharia Policy at Kuwait University, affirmed that the principle regarding a father traveling to reside elsewhere is that custody remains with him, provided the route and destination are safe and he does not intend to harm the mother. He noted that if the father travels out of necessity, custody is more likely to remain with the mother, and her right is not forfeited if the father intends to harm her, citing the Prophet’s (peace be upon him) saying: “No harm and no reciprocating harm.”

Al-Husainan clarified that the criterion in all custody situations is the best interest of the child, explaining that the primary objective of custody is to protect the child from harm and attend to their interests.

He explained that custody is a type of guardianship over the person. Guardianship over the person is broader, encompassing custody, sponsorship (kafala), guardianship over marriage, and a husband’s authority over his wife. Custody, however, specifically concerns the care, upbringing, and management of the minor’s affairs during the age when they require a custodian. Once custody ends upon the child reaching the age of discernment, the child enters another stage, which some jurists call sponsorship, until adulthood.

Dr. Al-Husainan pointed out that the impact of this distinction is evident in the issue of the child’s travel. The custodian’s right relates to caring for the child and managing their daily affairs, whereas guardianship over the person relates to preserving the child and making decisions connected to their interest. Therefore, neither party may unilaterally decide on travel if it affects the other party’s rights or the child’s interest. Instead, the rights of both the father and the custodian, as well as the child’s interest, must be considered. This is what the Kuwaiti Personal Status Law considered in Article 195 when regulating the travel and prohibition of travel for the custodial child.

Regarding the prohibition of the custodial child’s travel, Al-Husainan affirmed that prohibition is legitimate if its purpose is to protect the child, achieve their interest, and avert harm, such as travel to an unsafe country, or if the travel would cause harm to the child’s religion or worldly affairs, or if remaining with one parent is better for them.

He added: “However, if there is significant harm to the child and the prohibition is merely to harm the other party or deprive them of their right to custody or visitation, it becomes a means of harm and is not legitimate, in accordance with the Prophet’s (peace be upon him) saying: ‘No harm and no reciprocating harm.’ The criterion in all situations is the best interest of the child, not merely the desire of the father or custodian, because the primary objective of custody is to protect the child from harm and attend to their interests.”

He stated that if the child’s travel is for a legitimate interest of the child, such as medical treatment, education, or maintaining family ties, and does not result in harm, then the best interest of the child is the primary consideration in Sharia, and the mere objection of one parent should not prevent travel.

He mentioned that if the travel results in harm to the child or the loss of a more significant interest, then prohibition is legitimate, as the principle in custody rulings is to consider what is best for the child and protect them from harm. When parents disagree on assessing the child’s interest or the harm resulting from travel, the judiciary decides, as it is the body that assesses interest and balances rights to achieve what is best for the child, in accordance with the jurisprudential rule: “Action regarding the subjects is contingent upon interest.”

Best Interest of the Child

Regarding the current regulation of the custodial child’s travel in the Kuwaiti Personal Status Law, Dr. Al-Husainan believed that the current regulation needs further clarification, controls, and criteria that achieve a balance between the father’s rights, the mother’s rights, and the child’s interest.

He clarified that the current regulation highlighted a specific detail in the chapter on custody derived from the Maliki school of thought but did not encompass the various scenarios and issues that may arise regarding the child’s travel. Therefore, he sees the importance of reorganizing this issue and adding more detailed articles clarifying the rulings on the child’s travel, its controls, and cases of prohibition, with the best interest of the child as the primary criterion.

Al-Husainan advised parents, upon separation, to prioritize the child’s interest over personal interests and not to let their disagreement become a cause for revenge or the cultivation of hatred at the expense of the child, as this conflict reflects on the child, especially psychologically and personally, and may generate feelings of inadequacy and instability.

Genuine Fears

In his turn, Dr. Muhammad Al-Haddad, a Professor of Sociology at Kuwait University, affirmed that the disagreement between parents after divorce regarding the child’s travel may, in some cases, be related to genuine concerns about the child’s interest, but in other cases, it may become an extension of the marital conflict or a means of mutual pressure between the parties.

Dr. Al-Haddad clarified that prohibiting travel is closer to protecting the child when it is based on clear and specific reasons, such as genuine fear of non-return, or the potential impact on the child’s health, education, or safety. However, prohibition may be a means of pressure if the reasons are variable or unconvincing, or if permission to travel is linked to financial or familial concessions.

He noted that verifying the authenticity of concerns related to travel can be done by providing clear guarantees, such as specifying the destination, duration, place of residence, means of communication, and return date. He explained that continued refusal after providing these guarantees, without a direct reason related to the child’s interest, may indicate that the dispute has gone beyond protection to pressuring or harming the other party.

He mentioned that divorce ends the marital relationship but does not end the responsibilities of fatherhood and motherhood. He pointed out that the inability of both parties to separate their past disagreements from their shared responsibility toward the child may make custody, visitation, and travel issues an extension of their conflict.

Calm Environment

Dr. Al-Haddad affirmed that the question after divorce should not be “Who has the right to the child?” but rather “What decision achieves the child’s interest and preserves their relationship with their father, mother, and both families?” He called for a shift from the concept of “parents’ rights over the child” to the concept of “parents’ and both families’ responsibilities toward the child.”

Regarding the child’s desire to travel with one of their parents, Al-Haddad saw the necessity of listening to the child in a calm and neutral environment, away from the presence of parents and relatives, while considering their age and level of maturity.

He clarified that the consistency of the child’s position and their ability to explain the reasons for their desire in a manner appropriate to their age may indicate that their desire is genuine. Conversely, the use of phrases or accusations beyond their age, or appearing hesitant and afraid of offending one party, may indicate that their position is influenced by what they hear from their parents or family members. Al-Haddad stressed the importance of not burdening the child with the responsibility of choosing between their parents or making the decision alone, affirming that listening to their opinion should be aimed at understanding their interest, not putting them in opposition to one of their parents.

He noted that the extended family in Kuwaiti society can represent a protective factor for the child after divorce, as the child is usually surrounded by the father’s and mother’s families, including grandparents, uncles, aunts, maternal uncles, and maternal aunts. However, this advantage may turn into a source of pressure if relatives divide into opposing sides.

He explained that involving the child in this division may push them into a conflict of loyalty, making them feel that their love for one parent may anger the other, leading them to hide their feelings or say what pleases each party.

Dr. Al-Haddad concluded by affirming that the child is not a means of pressure or a battleground for settling disputes, and has the right to love both parents and feel secure within both families. He stressed that the criterion for any decision concerning the child, including travel, must be: Does the decision truly achieve the child’s interest, or does it fulfill one party’s desire to win over the other?

Psychological Pressure

For her part, Huda Al-Ansari, a psychological specialist in child and adolescent support, explained that the issue of the custodial child’s travel is not only about the decision to travel or not, but about the psychological experience the child lives through during the decision-making process. She noted that if the child feels pressured to choose between their parents, or that their decision will hurt one of them or cause a problem between them, the topic of travel becomes a genuine source of psychological pressure.

Al-Ansari clarified that the disagreement between parents begins to turn into psychological pressure on the child when it occurs repeatedly in front of them, and they begin to feel responsible for the disagreement or that they are the cause of it, generating feelings of guilt and anxiety.

She added that psychological pressure also appears when the child is used as an intermediary between the parents to convey words, decisions, or messages, finding themselves in the middle of the conflict and bearing psychological pressure they should not have to bear.

She explained that prohibiting travel may psychologically harm the child unless there is a justified reason, such as specific health conditions, the lack of appropriate care for the child, or specific judicial arrangements regarding custody. She pointed out that psychological harm is more pronounced when the prohibition of travel is used as a tool for pressure or conflict between the parents, making the child feel they are part of the disagreement or the cause of it.

Child’s Needs

Al-Ansari affirmed that priority must be given to the child’s overall interest, not just their psychological interest. Therefore, the full picture of the decision and the child’s physical, health, psychological, social, and academic needs, among others, must be considered, not just the desire of one parent.

She indicated that assessing the child’s desire to travel and understanding its source requires asking a set of questions that help understand the concept of travel itself for the child. These questions should be neutral and not suggest a specific answer to the child, and the conversation should be held separately from the parents so the child feels free to express their opinion without pressure or fear of either party’s reaction.

Al-Ansari concluded by affirming that the child is not responsible for any disagreement between their parents, and involving them in the conflict may cause them to live through conflicts and psychological pressures that affect them and their personality, with effects that may extend over the long term. She called for avoiding testing the child’s loyalty in any form and not making them feel forced to choose between their parents, as the disagreement between adults must remain the responsibility of adults.

Types, Reasons, Duration, and Impacts of Travel

Participants in the investigation viewed that the travel of the custodial child cannot be treated as a single case, as its impacts vary according to the purpose, duration, and surrounding circumstances of the travel. They affirmed that travel for medical treatment, education, or visiting relatives differs from travel with the intent to reside and settle abroad.

They clarified that temporary travel, when it has a defined duration and destination and does not result in harm to the child or diminish the rights of the other party, should be assessed differently from permanent travel, which may lead to a change in the child’s place of residence and distance from one of their parents.

They also pointed out that the justification for travel is an important factor in assessing the best interest of the child. Travel for medical treatment or education may be linked to a direct need of the child, while visitation or tourism requires consideration of its duration, circumstances, and impact on education and the other party’s right to communicate with the child.

Participants affirmed that the principle in all these cases is to consider the best interest of the child, with the necessity of establishing clearer controls that distinguish between temporary travel and travel with the intent to reside, taking into account the reason, duration, destination, and the rights of both parents.

Conclusions and Recommendations

Participants in the investigation reached the following conclusions and recommendations:

* The best interest of the custodial child must be the primary criterion in any decision regarding their travel, separate from personal disputes between the parents.

* Shift the approach to custody cases from the concept of “parents’ rights over the child” to the concept of “their responsibility toward the child,” ensuring the child’s interest and preserving their relationship with both parents.

* Do not use the prohibition of travel as a means of pressure or bargaining in family disputes. It is not permissible to use travel to harm the rights of the other party.

* Clearly distinguish between temporary travel and travel with the intent to reside, establishing more detailed controls for cases where parents disagree on travel.

* Mere fear of the child not returning should not be considered sufficient reason to prohibit travel unless it is based on genuine indicators or reasons that can be assessed.

* Establish clear criteria for the judiciary to evaluate requests for travel permission or prohibition, including: the reason for travel, its duration, destination, impact on education and health, and the other party’s right to communicate with the child.

* Mere disagreement between parents should not be considered sufficient reason to prohibit the child’s travel unless it is linked to a genuine interest that necessitates prohibition.

* Consider potential harms of travel to the child in terms of health, education, and security when evaluating travel requests or prohibitions.

* Do not burden the child with the responsibility of the disagreement or demand they choose between their parents, and do not use them as an intermediary to convey messages and positions between them.

* Listen to the child’s opinion in accordance with their age and maturity, without burdening them with the responsibility of choosing between their parents or making them a party to the dispute.

* Strengthen the role of social and psychological specialists in cases where the disagreement over travel is related to the child’s relationship with their parents or the impact of the family conflict on them.