Your Child Custody Order can ruin the holidays, for you and your kids. Most people do not think carefully enough about the terms of their holiday visitation, and the result can be a horrible Child Custody Order that causes more problems than it resolves. Too many times, people end up with Custody Orders issued by a judge or Custody Consent Orders that they have agreed to, only to later realize that the holiday visitation provisions are unclear or inadequate. This doesn’t have to happen. If your attorney doesn’t have the experience to ask you the right questions and insist on clear, unambiguous language in the Order, you should raise the issues with your attorney and make sure that your concerns get relayed to the judge who is deciding your case, or that your concerns are addressed in the final draft of the Consent Order. Failure to do so can lead to problems during the holidays, and divorced parenting is hard enough without that headache. Not every problem can be solved with language in a Custody Order, but many potential problems can be prevented with careful negotiation and drafting. Perhaps more importantly, after the final Order is entered, it’s too late. Changing a final Order is much harder, and more expensive, than getting it right the first time, so you should make sure that you get as much right as you can before the final judge’s signature goes on that paper.
This blog post will focus on some common issues that come up in Custody Orders, and will hopefully give you some things to think about if you’re in the process of finalizing a Custody Order.
- What day will you exchange at Christmas? Will you exchange on Christmas Day or December 26th? Most Custody Orders provide that kids will be exchanged on Christmas Day at some point. Most Orders divide the time equally during the Christmas holidays, such that one parent gets the kids the first half of their school break and the other parent has them the second half of their school break. Here’s the thing, though. Exchanging on Christmas Day, particularly in the morning or early afternoon, ruins Christmas for your kids. It just does. Rather than focusing on the fun of Christmas morning and spending time playing with their toys, the kids are rushed on Christmas morning, put in a car, pulled away from their toys and forced to travel on what should be a great holiday for them. It also ruins Christmas for parents, as they have to travel on Christmas Day. It’s horrible for everyone, in my opinion. A better alternative, and the way that I chose to do it in my own custody case, is to exchange on Dec. 26th. That allows both parents to travel freely on Christmas Eve and Christmas Day, and it allows the kids to enjoy Christmas Day. Sure it’s tough not to see the kids on Christmas Day every other year, but it’s not about us as parents – it should be about your kids. And in my opinion, exchanging on December 26th each year is better for everyone involved. Your individual situation may not fit that exchange time, but you should consider it.
- Is there language in your Custody Order that dictates SPECIFICALLY how the “regular schedule” will resume after a holiday period, and is there language in your Custody Order that dictates SPECIFICALLY whether the “holiday schedule” preempts “regular visitation.” If you don’t have specific language in your Custody Order about these issues, you are begging for trouble. Here’s an example to illustrate the point: Your Custody Order states that “after the holiday visitation, the regular schedule shall resume.” Thanksgiving rolls around, your “regular schedule” dictates that the Thanksgiving weekend is yours, but your Order states that your ex has the Wednesday-Sunday of Thanksgiving school break. So she has the kids, Thanksgiving break ends and you think you’re supposed to have the next weekend. Your ex doesn’t show up the next weekend, claiming it’s “not your weekend.” You say it is your weekend, she says it’s hers and you don’t get the kids. Who’s right? Who knows? The Custody Order is zero help, because it doesn’t dictate SPECIFICALLY how the weekend schedule will resume after the holiday, and whether the “holiday” weekend counts in the “regular” weekend rotation. So does “every other weekend” mean that since Thanksgiving weekend was your “regular” weekend but you didn’t get it because of the holiday, you get them the following weekend? Or does “every other weekend” mean that if you miss your regular weekend because of the holiday time, it still counts as your weekend, and that you don’t get them again for 2 weeks after Thanksgiving? The Order in this example is the problem. It’s not specific enough. I recommend two things to fix the problem. Number one, include the language “after any holiday or other special period of visitation, the regular weekend visitation shall resume as if the holiday or special period had never taken place.” This makes it clear that the regular weekend rotation does not change at all because of holiday time. If you lose one due to the holiday schedule, you know exactly when your next one is because the weekend rotation is set. In this example, the next weekend would NOT be yours, because your weekend was preempted by Thanksgiving, and your schedule would pick up with the weekend 2 weeks after Thanksgiving. Sure, in this example, you would “lose” a weekend with this language, but there will also be times that you have 3 consecutive weekends due to this language, and it will balance out over time. Number two, attach a calendar to your Custody Order which dictates every single “regular weekend” and every single “holiday or special period” so that it is 100% clear who has the kids on what weekends. No guessing, interpreting or arguing. If you’re in a contentious relationship with your ex, and if your ex looks for any excuse to deny you time with your kids, you NEED specific language in your Order, and a calendar, to minimize ambiguity so that it is 100% clear which time is yours and which time is your ex’s time. It will matter if you have to file a Contempt action because if you can’t point to a specific violation of the Order, you can’t enforce it. If your Order is ambiguous about how the post-holiday schedule will resume, it’s not worth the paper it’s written on, because essentially it’s unenforceable.
The point of these examples is to encourage you to play an active role in the drafting of the Custody Order that will control your time with your kids. Many people end up with Orders that aren’t clear enough, or that aren’t detailed enough to prevent visitation problems. Most people can work together and do what’s best for their kids, but if you’re one of those unfortunate folks who has an ex who will exploit any ambiguity in an Order to prevent you from seeing your kids, you desperately need a specific Order that covers as many situations as possible. Failure to handle it at the negotiation stage can lead to many frustrating, and expensive, problems. Prevention is better than a cure, and that’s definitely true in Child Custody Orders.