The holidays are upon us. Halloween. Thanksgiving. Christmas, Hanukkah, Kwanzaa, Diwali and/or insert the spiritual spectacular observed by your family members. These events can mark a trifecta of disaster if you are having trouble navigating shared custody. Here are some thoughts to help you keep your sanity from the time the leaves change until you ring in the New Year.
The most important aspect to shared physical custody is to have a very specific Parenting Agreement or Court Order. These documents set out the parenting schedule to be followed during the regular school year, holidays, and summer (or other breaks for year round students). Typically, such an Agreement or Order will note that the holiday visitation schedule takes “precedence” over the regular and summer visitation. This language makes clear that where there is a conflict between the two, the holiday schedule will be followed by the parties. Things to consider regarding crafting and following your shared holiday schedule would be:
· Do you alternate the holidays, or divide them equally? There are options for dividing holiday time. Parents might want to divide the holiday break from school by rotating the front half and back halves from a defined mid-point of each holiday break. Alternatively, parents might rotate the entire holiday in even and odd years. Still another option is to include a hybrid of these two with some holidays being rotated in their entirety and others being divided.
· What happens if one parent celebrates a religious holiday and the other one does not? For example, one parent celebrates Christmas, and the other celebrates Hanukkah. Does that mean the parent who celebrates Christmas should always have the child on that holiday? No, not necessarily. Most children have a long break during the month of December. This is one of the largest school breaks aside from Spring Break and Summer for students not attending school year round. Whether the parties observe a religious holiday, the Court would most likely divide the time between the parties to spend as appropriate with the child during their parenting time, while doing its best to acknowledge each holiday tradition. While the parents may agree that one parent would always have one stretch of time during the holiday break for a specific religious observance, it is not guaranteed that a Judge would make such a ruling.
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· What if one parent objects to the observances of the other parent? For example, one parent may be adamantly opposed to the participation of the child in dress-up and trick or treating for Halloween due to their religious beliefs. Unless the parents can mutually agree about whether the child can participate, a Judge would likely determine that each parent will be allowed to engage in activities with the child as they may choose on their parenting time unless there is some risk of harm to the child’s well- being. That is not to minimize the beliefs of either parent, but is intended to put them more on equal footing. North Carolina courts are not supposed to make custody determinations based upon preference for certain religious beliefs or practices over another. The decision is to be made based upon the impact to the child focusing on his or her best interests.
· Is denial of visitation during holidays an “emergency” that could be heard by Family Court immediately? Unfortunately, the answer is likely no. Whether the parents are trying to informally decide how to handle the holidays, or they have a specific Agreement or Order in place, they likely will not get in front of a Judge because they cannot agree about where the kids will eat their turkey on Thanksgiving. However, if one parent is intentionally sabotaging the holidays, that may be a different story. This is typically addressed as part of the Court’s initial review of custody, or as a contempt or modification motion in cases where an Order already exists (but neither is considered an emergency requiring immediate attention by the Judge). So, while it can be devastating to miss out on a holiday, just know that there are avenues, albeit not likely immediately, to address it going forward if it happens.
Parents typically know best what schedule works for their families, and it is recommended they work with family law attorneys to help them craft appropriate language to define the holiday schedule in a manner that would be best for their children. If they are not able to agree on incorporating the specific terms of the regular, summer and holiday schedule into an Agreement and/or Consent Order, it is likely necessary that parents have a Judge determine the appropriate division of parenting time, including a holiday schedule.
Good communication (or at least some communication!) is a key aspect to ensuring you will minimize the amount of time you spend fretting over where your “Littles” will be pandering for their candy, eating their turkey, and opening their gifts. You’ll spend enough of your time fretting over what size bird to buy to feed your crowd and looking for an acceptable gift for that stray relative who always shows up at the last minute.