In the latest Weekly Wright Report:
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!