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VisitationChildren and Holiday Visitation – Part 2

December 19, 2007

After I posted 10 Tips to Help Children of Divorce Deal with the Holidays, I was interviewed by Lawyers USA about the issues that crop up around the holidays about holiday visitation.

The article was written by Jason Rebello.  Lawyers USA graciously granted me a reprint permission.

  With the holiday season fast approaching, family lawyers may find an unexpected complication in their clients’ post-divorce lives.
Attorneys say that in many cases, both the husband and wife are in such a rush to finalize the separation that they may overlook how they will handle the holiday season.According to a study by the Houston Chronicle in 2006, approximately one million children each year experience their first holiday season in the wake of their parents’ divorce, and the consensus among lawyers in those cases is that the dynamic can take its toll not only on the children and their parents, but on the lawyers themselves.

Christine Bauer, a family law attorney in Orlando, Fla., claims that a lack of preparedness can put a serious damper on the holiday season for everyone involved.

“Judges hate dealing with these issues,” said Bauer, who attempted to bring such an issue before a judge last year.

The case involved two unmarried parents who could not agree on where the child would spend Christmas.

“The judge decided that the regular visitation schedule fell on the father’s time and Christmas was just another day,” Bauer said.
The decision, naturally, did not go over well with the mother.

“The thing is, judges expect parents to behave like adults, and the general assumption is they should do what is right for their child,” said Bauer.

Think ahead

The biggest mistake divorced parents make, according to Bauer, is waiting until the last minute to decide where and with whom the child will spend the holidays. Most assume the matter will be covered in the marital settlement agreement, but Bauer said it should be brought up immediately after the assets are divided during the divorce
“So many people [during the divorce] say that they will work it out later, but then a week before Christmas is when people call me and say [they] don’t know what they are doing.”

Bauer said the way to alleviate this is to ask each of the parents to put their expectations in writing during the divorce proceedings. Which parent will have the child on Thanksgiving, which will have the child on Christmas, and so forth.

This is particularly important when parents live far from each other.
“You have to decide well ahead of time and be cognizant of the fact that it can be difficult to fly people around during the holidays. You split the time so everyone can celebrate on their own time,” Bauer said.

Family lawyers agree that problems often arise when one parent decides at the last minute he or she wants the child on a day that is not spelled out in the agreement. Dan Clement, a solo divorce attorney from New York City, advises his clients to be reasonable and avoid bringing the matter into a courtroom.

“You will have to see what the real relationship is between the parent and child,” said Clement. “Is there any reason why the non-custodial parent shouldn’t have time over the holidays? Assuming the mother had a child over one holiday, a judge won’t see a reason why the dad shouldn’t for the other.”

Ensure clients understand agreement

One common scenario around the holidays is that the custodial parent finds an excuse at the last minute not to allow the child to be seen by the non-custodial parent.

“There’s always a nervous one on pins and needles,” said Clement. “Clearly the one who has custody of the child controls whether the non-custodial parent will see the child. It’s not uncommon for Johnny to suddenly have a cold or wake up with a 102-degree fever the morning of [visitation].”

To alleviate that potential complication, Clement advises attorneys to ensure both parties are clear not only on the agreement, but on potential penalties if a parent does not adhere to the agreement, up to and including a long-term loss of visitation. But he noted that this is little consolation to the non-custodial parent on the day in question.
“[Non-custodial parents] can buy plane tickets and make hotel reservations, but the fact is they won’t know if they’re going to see their child on that day until they see them. It’s a tough situation because they have their heart set,” Clement said.

Propose sharing the holidays

Janet Langjahr, a divorce and child custody attorney practicing in Boca Raton, Fla., said the ideal scenario in a benign separation is for the parents to spend at least part of the holiday together, so the whole family is together.

“The first holiday after separation can be very difficult for a child,” said Langjahr. “If the parties still live close together and can act in a civil fashion, then it’s best for the kids if the parents are each at least celebrating part of the holiday with them.”

Langjahr said sharing the days can take a lot of the burden off an attorney as well, but is something that must be considered early in the divorce proceedings, preferably at the point when the temporary order is entered.

“That’s when you hear the restrictions on comings and goings [of the parents]. The first thing you have to think about is, ‘Have any restrictions been put on my client?’ If they have, it would be prudent to go to court and prevent them before a trial.”

Supervised visitation

In some cases, one or both of the parents requires supervision when with the child. On holidays, however, parents could run into trouble if supervisors or therapeutic trainers have time off.

“There has to be some kind of structure in place, depending on the degree of dysfunctionality,” said Langjahr

Langjhar’s suggestion: employ a trusted friend or relative agreed upon by both parties to replace a professional supervisor. However, Langjhar tempers this suggestion with a warning that in more extreme circumstances of abusive behavior or psychological problems, a professional supervisor or hospital setting should be utilized no matter what.

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