Traveling and Relocation with Children – Rules for Joint Custody

The Children's Act regulates parents' ability to take children out of Norway through two key provisions: § 40 concerning moving and staying abroad, and § 41 regarding shorter trips abroad. This distinction is crucial for understanding which rules apply when parents with joint parental responsibility wish to cross the border with their children.

Moving out of the country - requirement for agreement

In the case of joint parental responsibility, both parents must consent to moving out of the country, cf. § 40 second paragraph. However, if one parent has sole parental responsibility, they can move out of the country with the child without the other's consent, cf. § 40 first paragraph.

The law has a broad understanding of what counts as moving. It also includes:

• Staying abroad beyond shorter trips

• Extension of a stay abroad

• Change of stay abroad (e.g., moving to a different country than agreed)

• The situation where the child is left abroad

For children over the age of twelve, a special requirement applies: the child must consent if they are to move or stay abroad without someone who shares parental responsibility, cf. § 40 third paragraph.

Court's competence in relocation cases

Since 2015, the courts can decide issues concerning moving a child out of the country, without needing to change the actual parental responsibility, cf. § 56 first paragraph. This allows the courts to address the relocation issue as an independent topic.

In HR-2019-1230-A, the Supreme Court (Høyesterett) addressed a case where a mother wanted to move to Italy with children aged five and six. The court based its decision on the principle of the child's best interest (§ 48) and assessed which option would best secure the children's upbringing and development. The mother was granted permission to move to Italy with the children, despite the father having extensive visitation rights and shared parental responsibility.

Short trips abroad - greater flexibility

For shorter trips abroad, the rules are more flexible. The main rule is that the person who has a share in parental responsibility may take the child on "shorter foreign trips," cf. § 41 first paragraph. This applies regardless of whether the child regularly resides with the person or if it's a matter of visitation.

The term "shorter foreign trips" mainly refers to holiday trips. Case law indicates that trips lasting more than a few weeks, and up to a couple of months, normally require the consent of the other parent.

Travel ban due to risk of non-return

When there is uncertainty about whether the children will return after a trip abroad, the court can impose a travel ban, cf. § 41 first paragraph. The condition is that there must be a concrete and objective danger that the child will not return.

Several factors are considered in the assessment:

• The parent's ties to Norway

• Residency duration and language skills

• Employment and housing situation

• The level of conflict between the parents

• Concrete travel plans (including return tickets)

• Whether the destination is a country with which Norway has an extradition agreement

There is no need for a likelihood preponderance that the child will not come back, but there must be objective grounds for the concern.

Implementation of a travel ban

In the case of a travel ban, the child's passport may be withdrawn or kept by the other parent. The police can impose a provisional travel ban until the court has handled the matter, cf. § 41 third paragraph.

Special rules for parents without parental responsibility

Parents without a share in parental responsibility cannot leave the country with the child without consent from the person who has parental responsibility, cf. § 41 fourth paragraph. If consent is unreasonably denied, the court may still grant permission if it is clear that the child will return.

Children over the age of twelve must consent to trips if they are traveling with someone who does not share parental responsibility, cf. § 41 fifth paragraph.

Summary

The rules of the Children's Act regarding relocation and trips abroad balance the consideration for the child's best interest, the rights of the parents, and prevention of child abduction. With joint parental responsibility, consent is required for relocation, while shorter holiday trips are permitted for each of the parents. A travel ban can be imposed when there is a concrete risk that the child will not return to Norway.