In the latest Weekly Wright Report:

• Keeping the Holidays Happy in Families with Two Households – read now
• If the Scarf Fits: The brutal reality of being a Taylor Swift Ex – read now

Keeping the Holidays Happy in Families with Two Households

By Fred Kobb

The winter holiday season seems to have been designed for children, if not the child in every adult.  Between images of flying reindeer, houses bedecked with holiday lights, traditions of gift-giving, and sharing freshly backed sweets, it’s hard not to walk around with a perpetual smile during the holidays.  For children, the experience is especially joyful; this is the stuff that creates lasting memories.

At the same time, with all the plans and travel, preparations and obligations, the holidays can be stressful and draining.  For those families that have recently experienced a separation or divorce, the stress can be exponentially greater than usual.  Figuring out holiday access schedules, making transportation arrangements for exchanges, accommodating the holiday traditions of each parent’s family, and starting a new way of celebrating the holidays can be especially challenging.  These challenges can be even more difficult when the parents have not signed off on a formal parenting agreement or a court has not made a custody ruling.  Until one of those happens, neither parent can dictate a schedule.  This means that parents who are recently separated are expected to work out a temporary holiday access schedule on their own.  Given the emotions associated with holiday celebrations, efforts to agree on a schedule can be divisive and heated.  There are, however, mechanisms that parents can utilize to help reach an agreement and maintain civility between them and assure a peaceful holiday for their children.

The simplest and least expensive way of working out a holiday access schedule is through direct discussions between parents.  Of course, this requires open lines of communication and some expectation that each parent is willing to compromise in order to achieve a schedule that works for everyone—especially the children—understanding that neither parent will achieve everything he or she would like.

If parents can reach an agreement on their own, the terms of the agreement should be put in writing.  While a formal separation agreement or temporary parenting agreement would be ideal, that isn’t crucial.  A simple email or text message exchange between parents is sufficient.  What’s important is that the agreement is documented and can be referred to if questions about the terms arise during the holidays.  A written agreement may also be useful if it ever becomes necessary to demonstrate to a judge, as part of a contested custody case, that the parents have successfully communicated about and resolved the holiday access schedule.  This will serve as evidence to refute a claim by one parent that he or she should be awarded sole custody because, in part, the parents are not capable of civil discourse and reaching shared decisions.

If parents are not able to work through a holiday access schedule on their own, they may benefit from the help from a third-party neutral.  This could be a mediator or a parent coordinator.  In mediation, parents meet with someone who is trained in conflict resolution to facilitate an agreed outcome.  Mediators are either mental health providers or attorneys.  It is important to select a mediator that has received appropriate training and has experience mediating custody disputes.  Mediators are not decision-makers; a mediator cannot impose a solution on parents.  If parents cannot reach a mutually satisfactory solution through mediation, they will have to consider other mechanisms of conflict resolution.

One alternative is to use the services of a parent coordinator (“PC”).  Parenting coordination is a child-focused process conducted by a licensed mental health professional or an attorney who is certified as a PC.  The PC is trained to assist with co-parenting in high conflict situations.  A PC can help by: (a) facilitating a resolution of disputes; (b) educating parents about children’s needs; and (c) with prior approval of the parents or the court, making decisions on limited issues, which may include a temporary holiday access schedule.  Whereas a mediator will not typically make recommendations and is not permitted to make decisions, a PC is expected to recommend an outcome and, if the parents have authorized the PC in the initial engagement contract, may make a decision that parents are obligated to follow.

If efforts at alternative dispute resolution fail, parents are left with seeking a court ruling to resolve their differences.  When parents are involved in litigating their divorce in court, a judge or magistrate will normally include in any custody ruling a holiday schedule to be followed.  However, where the court has not yet scheduled a hearing on custody issues, there may still be an opportunity to have disputes about holiday access brought before the court on an expedited basis.  While courts tend not to set in cases for emergency hearings to resolve routine custody disputes, in the case of holiday access, some courts have adopted procedures during the months of November and December to address disputes about holiday access schedules.  In order to take advantage of these procedures, a case must be pending before the court.  This is not a service that is offered on a “walk-in” basis.  Further, each jurisdiction has different procedures in place to hear disputes about holiday access schedules, so it’s important to consult with the clerk of the court where the case is pending to determine what steps are required to get the dispute before the court.  Where this option is available, it can provide a quick and easy resolution to the holiday access dispute.

The important thing to keep in mind when trying to work out custody issues, especially ones involving holiday schedules that could have a lasting impression on children, is that compromise and good faith are crucial to reaching a solution that will provide children with a meaningful and memorable holiday.  This will afford everyone the opportunity to emphasize the “happy” in the traditional holiday greeting: Happy Holidays!

If you have any questions about holiday access schedules, I can be reached at FKobb@wcslaw.com, or see our Family Law Group.

If the Scarf Fits: The brutal reality of being a Taylor Swift Ex

From WCS Outreach

It’s Red season. That isn’t referring to the changing of the leaves or the impending holiday festivities marked by Starbuck’s signature colored cups. Rather, Taylor Swift fans are rejoicing in the re-release of the singer-songwriter’s pivotal 2012 album, Red (Taylor’s Version).

“All Too Well,” one of the album’s heartbreak ballads, has been rumored to be a reference to actor Jake Gyllenhaal (Brokeback Mountain, Southpaw) since it first hit airwaves. Gyllenhaal, who is 9 years Swift’s senior, dated the Grammy-winner for 3 months in 2010.

The re-released album ends with a grand finale, 10-minute extended version of the song. It is accompanied by a short film featuring actress Sadie Sink as a version of Swift and Dylan O’Brien as her boyfriend, detailing the intimate demise of the relationship.  As can be expected based on the song lyrics, the film portrays manipulative situations, disregard for the girl and young devastation.

Swift fans and non-fans alike could agree: it was a bad day to be Jake Gyllenhaal.

With Swifties rallying behind the hit-maker with a unified disdain of Gyllenhaal, can he stake a claim for defamation?

Defamation, the harming of an individual’s reputation, can be broken into two classes: libel, the written form, and slander, the spoken form. Defamation cases vary depending on platform and persons involved. For example, public officials are willingly placing themselves in the public eye, putting them at greater, but known, risk of societal criticism.

New York Times v. Sullivan (1964) better detailed these specific circumstances for defamed public officials in its ruling, stating the defaming party must have made their statement “with knowledge that it was false or with reckless disregard for whether it was false or not.” Curtis Publishing Company v. Butts (1967) extended this applicability to public figures, including actors who have happened to date Taylor Swift.

Swift’s keen attention to detail in the curation of her lyrics and film indicate that there was nothing “reckless” about it.

Perhaps Gyllenhaal really did ignore Swift and drop her hand in front of his friends at a dinner party, keep her long lost scarf that she left behind, and not show up to her 21^st birthday party. Though these moments had spectators, it would be difficult to validate any as actions that could cause quantifiable demise of reputation.

Without proof that the fallout of the song created concrete consequences such as loss of potential work, Gyllenhaal’s reputation would appear to be intact. In fact, over the last week the actor has reached his highest Google traction in relation to the previous 5 years. He may be seen as an unideal dating partner, but his name is staying relevant in pop culture.

Additionally, in defamation cases, the matter at hand must be of “public interest.” Though celebrity relationship chasers might argue otherwise, a relationship split from a decade ago likely doesn’t fall under the category of impacting the community to a concerning degree where their attention to the matter is required.

Swift has also never confirmed the inspiration for the eerily specific song. The singer often avoids disclosing who most of her songs are about, though has shared she will give the subjects an opportunity to listen before release. A lack of a valid connection, and a potential that he knew about the song prior, could both harm a Gyllenhaal suit.

Other exes have also experienced harassment from Swift’s fans, including John Mayer, who claimed he was “humiliated” after the release of Swift’s single, “Dear John,” in 2012.

At this point, it may be more likely that Swift will receive her infamous scarf back than for her “All Too Well” ex to lead a successful lawsuit. Amongst it all, at least he can say he inspired a Billboard chart topper.

Want more? Visit the Weekly Wright Report page to browse past issues.