THE BLOG
12/12/2012 04:32 pm ET Updated Feb 11, 2013

A Parental Dilemma: Should Children Miss School for Extended Holidays and Vacations?

Family lawyers are seeing an ever-increasing trend with regard to parents traveling and vacationing with children during non-traditional times of the year. These non-traditional times include during the school year and additional days before and after regularly scheduled school holidays. This trend may be the result of current economic conditions, cheaper travel fares, greater choices of accommodations at off peak times or simply may just be a matter of convenience for parents due to their work schedules.

Non-traditional travel calls into question whether it is appropriate or acceptable for children to miss school to accommodate travel that can otherwise be undertaken at a time when children are on a break from school. The issue can and does create conflict for parents of intact families with differing views, not to mention the extreme stress and anxiety it can cause for separated or divorcing parents who are already faced with other conflicts.

While one parent may view travel causing a child to miss a few days of school as an educational, enlightening and unique experience which children could not get through traditional schooling, the other parent may greatly fear that the travel will cause a disruption in the children's schedule, cause the children to fall behind with their studies, will not be well viewed by their children's teachers and may undermine the value of education to the children. Since each family's situation differs so greatly, there is clearly no right answer to the question; however, there are many things to consider before broaching the issue with the parent of your children or making a decision with regard to travel while school is in session.

First and foremost, are you and your children subject to a custody order that dictates whether the children may miss school for travel? If so, the order must be followed or one party may be subject to contempt. In the event your order provides for the children to miss school for travel, be sure to follow the provisions of the order and confirm everything in writing. Assuming that the issue was not contemplated in a previous custody order or there is no custody order in place, there are many considerations to be reviewed by a parent. Children's ages, year in school, academic abilities, the way your children learn, the children's ability to adapt, the educational value of the trip, the teachers' willingness to provide work or even craft an assignment tailored to the travel, the duration of time being missed and the school's policy on absences are all essential aspects to consider.

For instance, there is clearly a significant difference of missing a week of school to visit an aunt who lives 100 miles away and missing a week of school for an extraordinary cultural experience in another country. The problem, however, typically falls somewhere in between these two scenarios.

Unfortunately, my professional experiences to date confirm that no clear and definitive answer or formula for determination of this issue exists. I have witnessed a judge granting a weeklong vacation to Disney World during the school year, which easily could be taken at a time when school was not in session, and I have seen a judge prohibit children from missing two days for the most educational opportunities, including a trip to historic Boston. This lack of clarity makes it extremely difficult to provide clients with any definitive guidance on this issue. As such, the following precautions and pointers are helpful in setting clear expectations for clients and helps ensure that no one ends up disappointed or surprised by an unwanted result from a Judge.

First, plan ahead and discuss the issues of travel during school with the parent of your children long in advance. This gives them time to make an appropriate decision and think things over without providing an immediate and time pressured response. The less time a parent in a high conflict relationship has to make a decision, the more likely the answer will be contrary to what the other parent is requesting. Discussing these issues far in advance also allows adequate time for court intervention, if necessary.

Planning ahead goes a long way in resolving this difficult issue and provides the traveling parent with time to use the Court if no agreement can be reached. Typically Judges do not respond well to last minute issues and the Court's backlog of cases often increases the likelihood that the issues will not get scheduled for hearing in a timely fashion. As such, the traveling parent runs a risk of their Petition not being heard by the Court or being denied.

This potential result, based on lack of preparation and/or untimely application to a Court for intervention creates greater conflict between the parties and may lead to non-refundable travel arrangements and disappointed expectations for both the parents, extended family members and the children. Whether you are able to resolve the issue with the other parent or going to Court, appropriate preparation is essential.

Second, if it is necessary to seek Court intervention, know your Judge or Master. While most Judges and Masters will not necessarily favor the concept of children missing school, many may see educational value or other secondary benefits of the travel, depending on the circumstances. Be prepared to tell the Judge the benefits of the travel and what arrangements you have made to make the travel educational and meaningful for the children. In addition, explain why the travel is necessary and cannot be deferred and what will be done in order to ensure the completion of the children's school work so they will not fall behind. Further there should be discussion regarding the above listed considerations with the Judge or Master to demonstrate that the benefit of the travel outweighs the potential detriment of the children missing school. Having the school's and/or a child's teachers advance written approval will also enhance the likelihood of a favorable result or outcome.

Finally, if your schedule is one that requires you to spend vacation or travel time with the children on non-traditional times, plan ahead and negotiate these terms into your custody order at the outset of your case. The parent opposed to traveling during the school year may be willing to negotiate this term in exchange for your agreement to something they may want. They may also be much more agreeable to a one time exception rather than a cart blanche agreement for the children to miss school whenever there is a planned trip. Having a reliable agreement and order at the outset helps avoid the issue altogether and potentially saves each party substantial amounts on legal fees, angst and time to have these issues resolved before they become yet another source of conflict.