Tis' The Season to Be Jolly: Holiday Visitation And Your Divorce/Custody Case

November 23, 2011

Every year between late October and mid-November, people throughout the land start thinking about the holidays. The Thanskgiving turkey, and a little football. The lights, trees, and all the gifts Santa Clause will bring (or needs to buy at the store). For many people this is a magical time of year. For divorce and custody attorneys, it can be the start of an ugly season, filled with fighting, battles over what orders really mean, emergency motions (that usually aren't really emergencies), and a general lack of holiday cheer in the family law legal world.

In almost every custody case, or divorce with children, I have taken part in over the years, people are in need of holiday orders. As we all know, holidays, whether Christmas, Hannukah, or a child's birthday can be some of the most special days of the year. In any battle regarding custody or visitation, the primary issue being fought over is TIME WITH THE CHILDREN. The most sought after of all is holiday parenting time. In most instances, people are in need of a schedule delineating who will get what holiday in what year. In probably 5 instances over the years, I have seen people arrive at visitation agreements which simply state, "the parties agree that they have the abilities to work holidays out on their own, with no set schedule." That's 5 out of hundreds. I have seen a few cases in which the parties agree, "holidays will be spent with whichever party is exercising his or her regular parenting time." I have seen this language in about 4 cases. Most people need orders regarding the holidays. Most agreements, or orders handed down by a court, contain specific provisions. Despite such, problems somehow seem to arise.

After years as a practicing custody and divorce lawyer in Denver, I have arrived at the conclusion that the only way to head off holiday trouble at the pass, and to curtail the anger that wells in the hearts of litigants over the subject, is specificity. Most holiday "emergencies" arise because of either vague orders. There are times when a case is filed close enough to the holiday season that there has not yet been a chance to get before a judge. In those instances, the key is for both sides to get an agreement worked out, knowing that the court will not hear the issue before the holiday season passes.

A cardinal rule to follow is making sure that language to the effect of, "holiday parenting time shall supersede regular and vacation time," gets into every visitation order. I have seen instances in which one party will believe he or she can take a vacation with the kids during the other parent's holiday, for instances the 4th of July. The language proposed above prevents that. In essence, if it is your holiday, you get that time, regardless of whether it falls during your regular visitation or the other parties. In the last couple of years, I have seen a few foolish attorneys suggest that there should be built in make-up time when a parent loses time due to the other taking his or her holiday. This can only lead to brain damage. The most user friendly way to look at this is from the perspective of the old addage, "what comes around goes around." You may lose a day due to your ex having Easter with the kids. Invariably, your ex will also lose time when you get a holiday. It balances out.

Holidays are generally rotated or alternated. If one parent gets Christmas in 2011, it stands to reason that the other will get it in 2012. With most holiday visitation schedules, the way things get balanced is to apportion holdiays on an even year/odd year basis. I have seen people try to map out the next 18 years, picking specific years. This generally leads to disaster. To truly keep things fair, it is wise for people to set a schedule such that the few most important holidays are balanced more or less equally in any given year.

Getting back to specificity, the most common problem relates to "what is the actual holiday?" By this, I mean that true definition needs to be made. Any ambiguity can lead to debate and litigation. I have seen orders drafted by people on thier own, or by attorneys who did not take the time to get specific. For example, an order might say, "Mother gets Christmas in even years and father gets it in odd years." What does this mean? Does it mean that at 12:00 a.m on December 25, mother would be entitled to go to father's house to pick up the children, and that she must return them at 11:59 p.m. the same day? One could argue it does. Believe me, I have seen people argue just that. Adding specific start and stop times will completely alleviate any room for debate. An order or agreement should state something to the effect of, "Mother shall have Christmas in odd years and father shall have Christmas in even years. Christmas shall run from 9:00 a.m. on Christmas Day until 9:00 a.m. on December 26." In this instance, the times are clear.

Specific times and days, if applicable, should be used when defining each and every holiday. This holds true for school breaks as well. Most people, or courts if they can't agree, will include Winter Break, Spring Break, and Fall Break into the mix as defined holidays. As with actual days, these blocks of time also need definition. Does Spring Break begin on the Monday when school should be in, and end on Friday? Does it start at the time school would and end at the time school would get out? Generally, these breaks should be set forth as defined, one blocks, such at 10:00 a.m. on Saturday to 10:00 a.m. the following Saturday. Spring and Fall Breaks are best apportioned such that each party gets one during any given school year, not calendar year. The Winter Break will generally be split into two blocks, with Christmas Day, and usually Christmas Eve, set forth as separate days therein.

I have been fortunate enough to only have to deal with holiday emergencies two or three times over the years. I like to think that is because I make sure specifics are included in every order I take part in drafting. I have talked with countless court clerks who loathe the holiday season, at their jobs anyway, because of the onslaught of motions that will be filed because on party or the other feels cheated, or tries to cheat the other, out of these most sacred times with their children. Some courts will treat holiday motions as emergencies. Some courts will entertain motions based on knowing how important holidays can be, and perhaps with a tinge of empathy in mind. Other courts may become annoyed, because emergencies generally relate to children being abused or endangered, not holidays.

As with all people, courts do recognize the importance of holidays. Judges are human, too. Many have families just like the rest of us. If either party requests reasonable holiday orders to be entered as part of a visitation schedule, his or her wish will be usually granted those. One should keep in mind that if he or she violates court orders regarding holidays, he or she may find lasting trouble. In the Denver family law legal world, Mother's Day and Father's Day are most sacred. Cheating the other parent out of either of these holidays may forever doom you in the eyes of your judge.

Finally, the best way to set a holiday schedule is via agreement. This takes both parties sitting down, identifying what holidays are important to each, and making a specific schedule from there. If the suggestions set forth herein are followed, you should be able to avoid the cost and brain damage of litigation over holidays.

I wish all my clients, readers, and any one going through a custody or divorce case a happy holidayn season. Make it happier by getting your schedule set forth properly, with specifics and balance. Custody cases do not have to be ugly. Semi-quoting the ending of a traditional Christmas poem, "...and I heard him exclaim as he rose out of sight, 'Merry Christmas to all who choose not to fight.'"