Any family law litigator will tell you our clients are, by and large, not the best at following advice. In our clients’ defense, our advice can sometimes be very hard to swallow. There are, however, certain truths in divorce that practitioners have watched many people learn the hard way: Settlement is most likely on the courthouse steps; a motion for contempt may be the least effective way to change someone’s bad behavior; and—just in time for the holidays—you will be happier developing new family traditions than trying to hold onto the ones you had prior to the divorce.
A time when I find my advice most hastily disregarded is when the parties are close to settling an allocation-of-parental-responsibilities case. While clients may envision peaceful post-decree parenting relationships, their counsel can easily spot the problems that will result from the insertion of well-intentioned, but often ill-fated, parenting time agreements. Post-decree litigation, for many family law attorneys, makes up no less than half of the practice.
Here we’ll explore common holiday- and vacation-related pitfalls of plans for newly separated parents, as well as the benefits to parents and children alike of alternating holidays, expanding holiday parenting time and allowing extended vacation parenting time.
For some clients, no amount of mediation-table horror stories can dissuade them from inserting regrettable provisions into their parenting plan, such as a right of first refusal, a daily communication requirement or a prohibition on introducing future significant others.
While those things might seem important at the outset of co-parenting, the reality is that any of them can be manipulated—and all too often, they are.
When crafting terms for a parenting plan, it is imperative to move away from ideals and remember that what is being created is a proposed court order. Ask yourself which provisions being added are enforceable and which you would actually want enforced. These questions are especially important when either party will be authorized to file and initiate expensive post-decree motions seeking to remedy violations of the provisions. Many provisions written with the best intentions can double as a sword and shield for a controlling ex and can be the unfortunate bases for needlessly expansive litigation. In the same vein, there is nothing that will ruin your holidays quite like a complicated sharing schedule you came up with while wearing rose-colored mediation glasses.
To be clear, divorcing parents who, in their children’s best interests, can overcome their differences to reach agreements for a parenting schedule and decision-making protocol should not be discouraged. But let’s be honest: You’re not going to want to spend every Halloween, Christmas and kids’ birthdays with your ex.
Second only to sharing a holiday with your ex is a requirement that parenting time exchanges occur on holidays. Missing a few holidays with your kids will not outweigh the struggle and trauma you may be imposing upon yourself by falling into one of these traps. Doing so may also significantly stunt your ability to travel with (and without) your children, create and enjoy new post-divorce family traditions and more.
Especially for the newly separated, the thought of either parent being away from their children on a holiday for which the family had special traditions can be almost intolerable. Recent separation can be a bumpy road, but both parents insisting upon being present at every event or function does not make it any smoother. Many parents tend to ignore legal advice about such insistence until they try, fail and prove to themselves that being present for every single event, even if that’s what the children are saying they want, might not be worth the risk of exposing them to in-person parental conflict. The lucky learn that lesson during the pendency of the legal case (with minimal conflict, ideally), so that by the time discussions turn to settlement of permanent orders, terms for a parenting plan will be drafted with reduction of conflict at the forefront instead of as an afterthought.
There is nothing that will ruin your holidays quite like a complicated sharing schedule you came up with while wearing rose-colored mediation glasses."
The not-so-lucky will fall into the well-intentioned trap of trying to stipulate the holiday time shared contemporaneously between co-parents. This might include joint trick-or-treating, attending the same fireworks show on July 4th, or reliving the good old days with a shared trip over Labor Day weekend. While well-intentioned, these thoughts may result in a court order mandating that you spend time in the proximity of someone with whom you have plenty of unaired dirty laundry, who may be at a completely different place in their grieving or healing process and who might never be on good terms with your new partner.
Agreements to split holidays—for example, having a parenting time exchange occur on Thanksgiving or Christmas Day—are not much better. Such agreements are almost exclusively more for the benefit of the parents who don’t want to miss a holiday with the kids than for the kids themselves. The reality is that your children probably don’t mind celebrating twice. Day-of exchanges on holidays instead force your children into situations where they’ll be enjoying festivities during one parent’s time before being abruptly tossed into a transition and made to tote all the accompanying emotional baggage. Children may be led to believe—or may, in any case, understand—that the interruption to their good time during a holiday was caused by their parents, no matter how good their relationship with each parent may be.
The holidays can be tough on the children of divorced parents, and kids will be happier and experience less upheaval if the parenting time exchange occurs on another day. Day-of exchanges result in a lot of big emotions for confused kids fearing that they’re missing out on special moments. Instead, alternate holidays—and if it’s not your year, celebrate a few days before or a few days after. While you may not have the actual holiday with your children every other year, the result for them is a broadening of the season, less-hectic exchanges—and, of course, double the presents!
Another overlooked aspect of holiday parenting time schedules, especially for those whose children are young at the time of the divorce, is that tight turnarounds for holiday parenting time may preclude you from traveling. There are certainly great reasons to have frequent parenting time exchanges with young children. Too much time away from either parent—even a minority-time parent—can be dysregulating for children and may affect that parent-child relationship in lasting ways. As children get older and become accustomed to splitting time between homes, however, a parenting plan that writes off giving them extended time with parents will preclude them from trips, experiences and visits to family out of state. While it is hard to predict when children will be ready for longer periods of time away from a parent, many manage to bridge this gap by including “step-up” provisions with expanded time or extended visits starting at a child’s specific future age.
Writing longer periods of holiday time into your parenting plan will open up another important aspect of your post-decree life: free time and travel without your kids. The guilt that this causes some parents tends to pass with time. Parents learning to live post-decree deserve a post-decree life, often including new friends, a new partner and the addition of half-siblings. Optimally, despite sharing time between parents, your children will be fully integrated into whatever your family looks like. While it’s important to craft a parenting plan that frees up your children to enjoy travel with both parents, it’s equally important to consider your own happiness when your children are spending holiday time with your co-parent.
The holidays can be tough on all involved during and following divorce. Parenting plan agreements that seek to share, rather than alternate, parenting time make holidays for parents and children alike even more difficult. Overcomplicating holidays with day-of exchanges or detailed provisions mandating cooperation between splitting parents works against the children’s best interests and increases conflict. Although existing family traditions and religious practices should be considered when crafting parenting time schedules, the needs of children to avoid upheaval—and the needs of parents to have sufficient holiday time with (and without) their kids—are also of the utmost importance.
Happy Holidays!
As a partner of BAM Family Law in Denver, Colorado, Steven M. Visioli is adept at reaching amicable and favorable resolutions in the difficult, and sometimes highly complex, legal matters that family breakups can entail. In 2022, in an annual statewide survey, Law Week Colorado named Steven “Best Family Law Lawyer.” Steven has been recognized in Best Lawyers: Ones to Watch in America® for the past three years in Family Law.
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