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Family lawyers at this time of year know that with the holiday season comes custody and parenting time disputes. As suggested in my last blog post, getting a jump on these disputes before the midnight hour is the often the best way to proceed. Sometimes, however, it simply cannot be done and the family court judge needs to weigh in with a gavel in one hand and a glass of eggnog in the other.
Here is a sneak peak at how the process may unfold when a dispute arises as to who is supposed to be with the children, when and where is the time to occur, who is doing the driving, and the like.
- A Dispute is Born. Christmas Eve is rapidly approaching, the decorations are up, presents are under the tree and all appears to be going smoothly. Suddenly, your former spouse suggests that it is his year to have Christmas Eve and Christmas Day and that he will not take “no” for an answer. Similarly, you assert that it is your year to have parenting time with the children and you will not take “no” for an answer. You had been planning to take the children to your parents’ home as traditionally occurred during the marriage and you want to ensure that can continue uninterrupted. You turn to the terms of your judgment of divorce or settlement agreement and, unfortunately, all it says it that court holidays will be alternated. It does not say who will have parenting time and when, and since this is the first holiday season after the divorce the situation has never come up. At the end of your divorce proceeding you were on the same page with your ex and envisioned a flexible parenting time arrangement without issue or acrimony. With that being said, what can you do next?
- The Clock is Ticking. When the dispute arose will impact upon what can be done to address it. Is it November 1st and there is plenty of time to negotiate an amicable resolution (if one can be reached)? If so, immediately get negotiations under way so that if a resolution cannot occur you are prepared to seek court intervention. Call and schedule time with a mediator if necessary, talk to your parenting coordinator if one exists. Do whatever you can to avoid having a stranger in a black robe who does not know you or your children make important decisions about your life. On the other hand, if it is December 21st and there is no chance at settlement, you may have no choice but to file that application to procure an immediate decision from the family court judge. Consider that the same judge assigned to your case will likely have many other cases with similar issues to address. As a result, the time and attention you may feel your matter deserves may not be provided due to nothing more than limited judicial resources and availability.
- What Does Filing with the Court Look Like? When time is of the essence and a decision has to be quickly made, you may have no choice but to file what is known as an Order to Show Cause with the Court. In your application, you will ask for your desired parenting time relief and submit a certification under oath as to why your relief should be granted. When filing an Order to Show Cause, you are also required to provide a legal brief stating why immediate or irreparable harm will result if the relief is not granted. Especially with a busy court calendar at the end of the year, certain judges may not believe that the issue of which parent should have Christmas parenting time merits immediate attention. Oftentimes, however, the court will address the issue and render a decision. The judge may want to hear from the other party in writing and may even bring everyone into court to hear oral argument. Many times, rather than bring everyone into court, the judge may simply schedule a phone conference to address the issue.
- Try to prevent these situations in the future. When addressing holiday parenting time, do your best to get a jump on the situation. While you may believe that a flexible schedule with little detail will work best at the time of its execution, perhaps more detail as to the issues outlined above will provide a clearer roadmap should any future issues arise. As also set forth above, attempt, if possible, to resolve these issues privately before running to the courthouse. The potential emotional and financial savings of a resolution cannot be understated. If you end up having to involve the court, it will also show the judge addressing your matter that you did everything you could before filing.
No one wants to encounter conflict during the holiday season. Especially for divorcing or divorced parents, there is enough going on without having to address a parenting time conflict or dispute. When issues arise, however, it is best to understand and be prepared as to how things may unfold.