From the Family Law Letter: Child Custody

Heading Off Holiday Disappointment

Carefully constructed holiday visitation schedules can help keep holidays happy for divorced parents and their children.

Each year around this time—starting a week or so before Thanksgiving and continuing through December—our phone starts ringing with calls from unhappy parents. The problem? The holiday schedule won’t work, and the other parent is unwilling to help. What’s next? Frantic phone calls, emergency motions, a logjam at court, runaway costs, and frayed nerves for all.

It is understandable for any parent to feel a sense of loss when their children are not with them throughout an important holiday. But when this is not possible, parents want at least to feel their children’s schedule is fair, given the circumstances. Unless holiday (and vacation) schedules are drafted with extraordinary care and attention to detail, parents are likely to encounter last-minute crises that can leave everyone upset.

Over years of family law practice, we have prepared hundreds of holiday visitation schedules for our clients and their children. Along the way we have developed a lengthy and detailed checklist of specific, foreseeable issues and circumstances that arise for families at holiday time, and crafted precise language to address each issue ahead of time. When we draft visitation schedules for our clients, we use these tools to help us accommodate the needs of each individual family and create equitable, workable plans for sharing children at these special—but potentially difficult—times.

Planning ahead. To avoid holiday disappointment, parents should review existing written visitation schedules as far in advance as possible—whether such schedules were issued by a court or negotiated by the parties or their attorneys. If circumstances have recently changed in a way that could create a problem at holiday time, address the issue well in advance. Do not wait and hope things will work out.

Responding to crises. Despite planning—or in its absence—holiday visitation crises arise every year. How do we help when distraught parents call?

First, we ask if there is a court-ordered visitation schedule in effect, and if there is, we find out what is wrong with it. We can illustrate the kinds of problems that come up with three real cases (but not real names).

In the first case—we’ll call it the Washingtons—the court-ordered visitation schedule was inequitable. Our client, Martha, came to us three years after her divorce. During divorce proceedings, Martha had no attorney, but her husband, George, did. The court awarded George primary physical custody of the children and approved a visitation schedule drafted by George’s attorney that kept the children with their father for their entire Christmas vacation every year.

Since this arrangement was unfair to Martha and her children, we filed a petition with the court to reopen and modify its prior order. In our view, George’s attorney had taken unfair advantage of his client’s pro se opponent. Our petition was granted, and for the first time in four years, the children spent Christmas with their mother. After that they spent alternate years with each parent.

In the Adams’s case, changed circumstances made an existing visitation schedule unworkable. Previously, the Adams children had stayed with one parent from the afternoon of December 24 through 9:00 AM December 25, then with the other parent for rest of Christmas day. This schedule reversed on alternate years, and had proved workable as long as the parents lived near each other.

But our client, John, called us after his ex-wife moved 120 miles away with their children, making a Christmas morning hand-off impractical. Fortunately, we were able to negotiate a modified schedule whereby the Adams children would stay with the one parent from December 24 through December 27, then with the other parent for the balance of the school vacation. As before, the schedule reversed on alternate years. We prepared a written agreement which both parties signed to accept the new schedule, then we filed it with the court, saving time and money for both parties.

Finally, in the Jefferson case, our client, Thomas, had been represented during the divorce by an attorney inexperienced in family law. Thomas came to us with a court-ordered visitation schedule that was not specific: it provided only that physical custody of the children would be “shared during holidays.” The children’s mother, who had primary physical custody, had not allowed the children to spend Christmas with their father since the divorce, despite his efforts to negotiate with her.

This year, Thomas wanted very much to spend Christmas with his children at his parents farm, but the holiday was only ten days away. We went to court with Thomas and filed an ex parte (emergency) petition to reopen and modify the court-ordered holiday visitation schedule and a proposed order to grant physical custody of the children to Thomas from the close of school December 24 through 5:00 PM December 25. The court granted the order, and scheduled a hearing three weeks later to consider proposed visitation schedules for future years. At that hearing, the court approved our further proposed order for a specific alternating-year holiday schedule.

These three cases illustrate the kinds of problems that can arise with court-ordered visitation schedules and the kinds of remedies that may be available when such problems arise. When there is no court-ordered schedule in effect (because the parents have just separated, for instance, and no order has been issued yet) emergency judicial relief will generally not be available. In such cases, we can attempt to negotiate a solution for the current year, and we can start the process of establishing a schedule for future years by filing a petition with the appropriate court to establish custodial rights.

Disagreements about holiday visitation schedules can carry a lot of emotion for parents, and can, in some ways, rekindle old disputes that led to the divorce in the first place. If you are facing such issues, try to find a workable compromise with your former partner. If you cannot, seek assistance from an attorney experienced in family law.

In our office, we approach such disputes as opportunities for creative problem solving, and try to negotiate a workable schedule for the current and future years. When this succeeds, we can file the new schedule with the court as an agreement; there is no fee for filing an agreement on a previously filed case, even if it is now closed. And any holiday visitation schedule arrived at by agreement of the parties is likely to prove more suitable than one imposed by the court where parties fail to agree—which may fit no one’s needs and leave everyone, including the children, unhappy.