In an unpublished opinion, the Court of Appeals for Idaho affirmed the magistrate court’s custody order.
Laurent and Micaela divorced in 2019, when their daughter was 3 years old. Laurent, who is a French citizen and U.S. permanent resident, appealed based on the restrictions placed on his ability to travel with the child to France, where his parents and older daughter live. Laurent and Micaela had agreed to share joint legal custody, but did not agree as to their daughter’s physical custody, which they litigated in 2019.
Laurent argued, at trial, for a seven consecutive overnights with his daughter so he could travel with her to France. He also argued for obtaining a French passport for her. The magistrate court issued its finding of facts and conclusions of law, concluding that Laurent should have five consecutive overnights for vacation time, not to be stacked with his regular overnights, to happen in the United States, absent agreement by the parents, and that the parents need to determine when it is appropriate for their child to secure a French passport. Thereafter, the magistrate court issued its written judgment and decree of divorce, incorporating the same limitations on consecutive overnights and the French passport, but including no prohibition on Laurent taking the child out of the United States. However, the lack of a French passport coupled with no more than a 5-overnight block of time essentially limited Laurent’s ability to take his daughter to France for a vacation.
The appellate court concluded that since the parties have joint legal custody, that naturally means both must agree to obtain a passport for the child. The parties had, themselves, agreed to joint legal custody. This implicates a practice pointer – when discussing legal custody, do not forget to know the law as to obtaining a U.S. and/or foreign passport for a child, and to discuss that as part of the negotiation, or trial if it cannot be resolved amicably.
Further, the court considered the statutory factors for determining a child’s best interest, and reached the conclusion that five overnights with Laurent were appropriate for this child. The trial court was within its discretion to limit the number of overnights that the minor child spent with Laurent consecutively. The child was very young, had only just begun spending one night a week with Laurent a few months prior to trial, and the parents were having difficulty at their exchanges. Further, Laurent’s own testimony admitted that it would be a stretch for the child to be in his care for five consecutive nights. The child was not accustomed to being away from her mother for long periods of time. The child was attending French school, had a relationship with her family in France, and was being exposed to her French culture and heritage, without traveling to France. As the child ages, there would no doubt be a material change in circumstances allowing Laurent to revisit this issue.