The Holidays Are Here…Do You Have to Share Parenting Time with Your Ex?
Dec 8, 2021 | Written by: | Share
It’s that time of year again, when we are supposed to celebrate and engage in merriment, but often for parents involved in old or new disputes with an ex, the holidays can be a great source of added anxiety. Following are answers to some of the questions that I hear most frequently from clients at this time of year.
If you are in the midst of a divorce or a custody dispute, how do you handle the holidays?
Many parenting time agreements, whether final or interim, provide for the alternating of holidays between even and odd years. Many parents alternate so that one parent has Christmas Eve in odd years and Christmas Day in even years, and so on. Some parents alternate the first night of Hanukkah annually, and so on. In some cases, parents and their respective families have important traditions, so while a court may be likely to implement an alternating approach, there are times where parents agree that one parent will always have Christmas Eve and the other parent always Christmas Day. In situations where the parents are able to be amicable, some parents share the opening of gifts on the important day.
What if you do not yet have an agreement, and are living in separate homes?
If you do not have an agreement (either interim or final), you should try to resolve this issue sooner than later, as the courts are on recess between Christmas Day and New Year's Day and most attorneys/staff tend to be on break as well during that time, making access potentially difficult. While there are judges on emergent duty and available, getting emergent relief (referred to as an Order to Show Cause) is a very difficult thing to achieve. You must meet a very high legal standard and demonstrate irreparable harm to the child (not the parent, typically). Even if you make a compromise in the interim, you can do so without prejudice in order to move forward, but not waive your rights to a different plan in the future and as part of your future negotiations.
What if you live in the same home during the pendency of your agreement, but still disagree on how the time should be spent?
This is somewhat more challenging, but again, communication and discussion with your (future) ex and your attorneys in advance of the holiday is the best course. It is plausible to timeshare even though you remain in the same household. Perhaps it is better to have an arrangement of which parent will be present in the home with the children during which times to avoid ruining the holidays, especially for your children. Perhaps you divide the holidays, and the other parent agrees to leave for a specific time period. Perhaps you discuss a budget for gifts for each parent and try to discuss purchases for the children so as not to duplicate or create acrimony. For example, neither parent should purchase a cell phone for a young child without a prior agreement in place.
What if you have a post-divorce or post-judgment disagreement with your spouse about the interpretation of an agreement (i.e., whose time is it)?
If you cannot agree on the schedule and disagree further on what your Marital Settlement Agreement calls for, you should still look to your agreements/contracts/consent orders to see what same demand in terms of dispute resolution. Are you required to mediate first and, if so, is there time to meet that requirement? Is there time for the court to hear an application that is not emergent? (That is unlikely, as a normal return date from filing is at least 24 days.) Does your matter meet the legal standard for emergency relief? If not, then you should work with your ex and your attorney as soon as possible to understand what the agreement intends, clarify any misunderstandings, and attempt to resolve the issues as far in advance of the holidays as possible.
What if your child is of an age where he or she does not wish to follow the terms of the agreement and has expressed a desire to do otherwise?
This can be tricky and depends on the ages of your children and what your agreement says (to the extent that one exists). If your children are 14 years of age of more, they are entitled in New Jersey to some “say” in the parenting time schedule, but that does not mean that their wishes are dispositive. After age 16, although there is no law that expressly states so, most attorneys would not counsel their clients to file a motion regarding custody and parenting time of children ages 16-17. Children that age are (within reason) likely to be able to make their own schedules and times to see the parents, of course barring any issues that have to do with harm or alienation, which is a far more complex issue than can be addressed herein.
If you have young children who are refusing to see the other parent, the immediate question any attorney or judge is going to ask is why? The why in this instance is of great import and is extremely fact-sensitive. Are there allegations of abuse and, if so, are the proper authorities involved and does this lend itself to an emergent application to the court (to be used sparingly). Many times, if there is no abuse or the parent is not unfit (very broad terms, I know), and a child is simply refusing, the child is likely to be “ordered” to go with the other parent. Despite how difficult and hurtful it may be for the parent, he or she needs to encourage the child to go. If the child does not go, will there be consequences, such as allocating the other parent make-up time, or even sanctions. These all need to be considered and discussed with your attorney.
What if your ex wants to use your holiday parenting time to travel with the children and you don’t agree?
The first question you and your attorney must address is whether your written agreement speaks to this issue. Is there a provision that dictates the hierarchy of parenting time (regular, holidays, vacation, etc.)? What the agreement says will likely control the situation, so read carefully and make sure you understand. Don’t breeze over this section during the negotiations because you are focused on other things like financial issues; ask questions and make sure you understand how the agreement will actually function.
If your agreement is silent on the priority of visitation times, does it speak to notice for vacation time? Did your ex give you the required notice and information? Does the vacation comport with the terms of the agreement otherwise?
The holidays can be very stressful under the best of situations. If you are going through a divorce or custody dispute, the holidays can exacerbate an already anxious and tense time. Preparing yourself is a gift you can give to yourself and your children each year.
Address the holidays in advance to ensure that you and your ex are on the same page in terms of expectations. If you want to travel with your children because it is a special event or a “one-off,” be willing to trade a holiday or other parenting time. Be reasonable, flexible, and malleable to make plans that are fair for everyone, most importantly your children.
If you are at an impasse that cannot be overcome, find that out sooner than later. Call your attorney and decide if it can be resolved between counsel or if you need mediation, and leave yourself enough time to apply to the court for relief if it is truly necessary. If your agreement calls for the use of mediation, take advantage of the opportunity to have a neutral party facilitate communication and get it scheduled. If your agreement calls for the use of a Parent Coordinator, apply for a recommendation. And if all else fails and you believe irreparable harm will fall upon your child(ren), apply to the court for emergent relief.
Every case, agreement, parent, and child are different. To understand your rights and obligations, you should consult counsel as soon as possible to address any impending holiday disputes.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.
Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.