With the approaching holidays, tensions can be raised and anxieties can become overwhelming. This is especially so if you have a child in common with somebody else and are attempting to navigate the thicket when it comes to custody and visitation during this period. Everyone wants to be together as a family, but unfortunately some of our social differences prevent us from doing so. When it comes to where your child will be for Thanksgiving, Christmas, and other similar holidays, there are certain items you can do to help avoid conflict and minimize these conflicts using your parenting plan.
WHAT DOES YOUR PARENTING PLAN OR COURT ORDER SAY?
If you have already been to court and have an order or parenting plan that defines custody, visitation, or parenting time, it should delineate what times and where the child will be during these events. It is a common phrase within the legal community that “a court speaks to its orders.” This means that whatever the court annotates in a written order is the law of the land. For example, if it states, “Mother shall have parenting time during Thanksgiving,” then it is mom’s visitation during Thanksgiving. The only way this can be changed is by a mutual agreement of the parties or a subsequent court order.
However, in the event the parties agree, this does not mean the Order is no longer in effect. Rather, the only changes that will take effect are the specifics of the agreement. The remaining portions of the Order will remain in full effect and the following holiday period will revert to the terms of the Order. Please note, the only time an order can be modified is if it is properly before the court and modified by the court.
In the event an agreement is made, it is always best practice to document this agreement in writing. Many such times this can be done via text message, e-mail, or third-party applications such as Talking Parents or Our Family Wizard. Absent an agreement, the Order is going to prevail. Further, documenting the agreement will alleviate any concerns should the other party have sour grapes after the fact and pursues further legal action such as a contempt proceeding. A written agreement will help protect the party where the modification occurred.
The point made is orders should be used as shields and not as swords. What this means is that an order should be the minimum standard by which the parents can operate. Most orders can and should have a provision in it that says something along the lines of “and all other times as agreed upon by the parties.” This allows parents to modify any sort of orders they have to accommodate different changes in their respective lives.
BE PROACTIVE AND NOT REACTIVE WITH YOUR PARENTING PLAN
If your family is anything like mine, holiday plans usually come together haphazardly and at the last minute. This is the worst scenario when it comes to any sort of modifications of schedule or negotiations when it comes to children. The best way to navigate this is to work early with the other parent, so that you can discern who has what time and when. For example, it is usually very difficult to split Thanksgiving Day because it requires a fair amount of logistics, families eat at different times, and the turkey is never done when scheduled.
In my divorce decree, I define Thanksgiving as “the end of school on Wednesday until the day before school resumes.” This allots for any sort of travel to enjoy the holiday with friends or family that may reside “out of town.” This ensures the day is not interrupted by having to transfer the children to their mother.
However, because Christmas is such a highly recognized and important holiday, we divide the day in half. In my opinion, this is extremely challenging and inconvenient; however, it is more important for the children to experience this day with both parents. In odd years, I have my daughters from noon on Christmas Eve until noon on Christmas Day, and their mother has them from noon on Christmas Day until noon on the 26th. This is alternated between even and odd years.
If you do not have an order, this type of arrangement needs to be worked out well ahead of time for two main reasons. First, it allows both parents the ability to coordinate any sort of travel plans that they may or may not want to make. Second, reaching any sort of agreement will prevent the necessity to appear before a court and allow a third party to make the decision regarding your holidays.
Nevertheless, the best practice is to be fair in what you do. If you must split the day because it must be equal in every specific way, then I recommend alternating holidays. For example, if someone got the morning of Thanksgiving, then maybe they need to get the afternoon for Christmas day, or vice versa. In any event, forewarned is fair warned in all cases involving custody and visitation.
COMMUNICATE EFFECTIVELY IN WRITING WITH YOUR CO-PARENT.
This is briefly alluded to previously in this article; however, it warrants more attention. Written communication can be very difficult. This is most often seen in text communication where you cannot understand the tone or the intent behind a written word. Communication can be much easier with the use of careful though and sticking to just the facts. I would also recommend using a third-party app, such as Talking Parents or Our Family Wizard.
Our Family Wizard is a third-party app that allows parents to coordinate schedules with each other and with third parties. For example, children, attorneys, and guardians ad litem can be given access. Communication through this and similar programs cannot be modified or deleted, and can be used in litigation if necessary. Another reason why apps like this are beneficial is that you can post and share calendars. This alleviates confusion as to the who, what, where, when, and how as far as custodial exchanges are concerned. This gives parties the ability to document communication and keep everything “on the record.” Finally, some apps even have “tone meters” that will flag statements that may be perceived as emotionally charged. This may help alleviate miscommunications and keep communication productive.
Should a party request to have Thanksgiving with the child, they can send an e-mail through one of these apps and the communication can go back and forth. Many times, having an open communication, or communication that is and can be reviewed by third parties, will minimize the hostile tone. This can be especially beneficial when coordinating holiday periods.
Further, I would also suggest journaling interactions with the other parent. For example, if the agreement states the child is to be picked up after school on Wednesday, but the child is not picked up from school and you have to go and pick up your child, then this clearly is an issue. It is disrespectful to your time and it creates confusion with the child. In the event custody or visitation needs to be addressed in court, it is always helpful to have an accounting of issues like this.
HOW DOES COURT INTERACTION WORK?
Ideally, courts should be used only in extreme circumstances when addressing upcoming holidays. As stated in the name, emergency hearings are available to parties in the event of an emergency. An argument or disagreement with an opposing party or a co-parent can create an emergency, especially when it comes to time during the holidays. It must be noted that everyone wants to enjoy holidays equally, to include clerks, attorneys, and judges.
For this reason, these types hearings should be filed with sufficient time so that they can be properly heard before the court. For example, if a party decides to file an emergency hearing the Monday before Thanksgiving, it is unlikely that they will be able to be heard by the court absent some sort of extraordinary circumstances. Does this mean it will not happen? Absolutely not. It is a possibility, but it is not likely a probable success. Instead, the best course of action is to start discussing these items around September and October time frame to hash out things that happen months prior. If a party is unable to reach an agreement regarding visitation during the holidays, then they may pursue mediation or less contentious avenue if that is something they want to use. This can be facilitated through an attorney or a licensed mediator.
Further, planning ahead gives parents the opportunity to file documents with the court, so the court may be able to hear it before holiday in question. This does not mean that a court will hear such an issue in its entirety to develop a full custody and visitation trial; however, it can have the parties appear before the holidays and enter a temporary order allowing them to have a direct course of action as things proceed.
If this is the case, pleadings should be filed no later than November 1st as a best practice and expressly state this is something that should be expedited with the court. This will give the court the ability to process the paperwork. Please keep in mind that all emergency or expedited requests are going to be heard at the discretion of the court. The court may or may not hear this in a timely manner or before the holidays. Courts are generally sensitive to these issues, but you are completely at their mercy.
Additionally, it should also be noted that courts are closed for all major holidays and may be operating at a reduced staff during these periods. For example, in the month of December, it is not uncommon for the court to be closed for majority of the month, or at least half of the month. This is because of reduced work schedules, people taking holidays, court closures, and also trials that have been scheduled many months prior due to proper filings. In any event, parents should attempt to work together and use the least contentious means in resolving matters involving the child. In the event you need assistance in navigating the complexities of custody or visitation issues, it is always best to consult with an attorney. We at Invictus Law are happy to be of assistance. Please contact us at (757) 337-2727 to schedule your consultation.