Holiday Custody and Visitation

It may be too soon to say it out loud, but it’s been awhile since the pumpkin spice flavored things started popping up in stores, so, to me at least, that really only means one thing.
The holidays are coming.
I love the holidays. Most people do. It’s a time of togetherness with friends and family and plenty of days off work. Lots of delicious heavy food (some things that you really only get at this time of year), parades, TV specials, and football. There are lots of great and exciting things to look forward to. But, if you’re a family who has been going through a divorce or custody case, there are a lot of tricky things to handle, too—particularly if this is your first holiday season post split.
For parents who are going through a divorce or are just breaking up, sharing the kids for the holidays is a difficult and emotional proposition. It’s something you’ve probably never done before, too. After all, when you were together, whether or not you were married, you probably shared holidays and special occasions. Even if you didn’t, it was easier to work things out then. Now, though, things are a little more contentious and everyone wants their own time with the kids to celebrate—separately.
For a mom, especially, the transition is rough. It’s difficult to imagine not spending Christmas, Thanksgiving, or Hanukkah with your kids. You cherish the holidays and the memories that come with them, and it’s difficult to think there might be a Christmas morning where the kids don’t wake up in your home and open presents under your tree. Whatever your religious or cultural background, this is the time where a lot of things are celebrated. And, even if you don’t celebrate anything at all (which is certainly possible, too), you’re not immune from having to deal with holiday-related issues. Even if you’re a Jehovah’s Witness, your kids have breaks from school that you have to deal with.
No matter who you are, the holiday season presents issues. With most schools giving at least a week off for Thanksgiving and more like a month at Christmas time, holiday-related problems will most likely arise. The more you plan ahead, the better chance you have of dealing with things head-on, rather than waiting for disaster to strike.
I can’t tell you how often we get frantic calls near the holidays, from women wanting to come in for “emergency” consultations. Their husband/child’s father has told them that, in fact, he will be taking the kids for the holidays, or that he won’t return the kids from their regularly scheduled visitation until after the holidays.
I understand. It’s emotional and jarring. You may not have expected it. I’ve had lots of moms tell me that it literally had never occurred to them that they might not get to spend Christmas with their child. It’s understandable. Having never been through this before, it’s hard to imagine all the things that could possibly change, especially when, if you’re like most people, there are really one or two main fears that keep you lying awake at night. Because you’re so worried about, for example, the family’s finances, it’s hard to have room in your head for everything else. It’s possible to get all the way to October, or sometimes even later, and have given absolutely no thought to how to handle the holidays. If that’s you, that’s okay. Take a deep breath.
Understand, before we go any further, that you will probably have to share holidays with your child’s father, which means that, unless the two of you are very, very, very flexible, you won’t get every Christmas, Thanksgiving, or Hanukkah. There will be some back and forth.

What do holiday custody and visitation arrangements usually look like?

Holiday visitation is usually alternated. Whether a judge orders your custody and visitation schedule or whether the two of you reach an agreement (this is generally the preferred method, because it gives you some control over the outcome), there’s normally a lot of sharing involved. Whoever gets Christmas gets Thanksgiving and, sometimes, New Year’s, too. Or, alternatively, you just split the Christmas break. Someone gets the beginning of Christmas break until noon on the 26th, and the other parent gets the 26th until the end of the break. Usually, the second half is a little longer, so it’s generally thought that this is the “trade off” part. You miss Christmas, but you get more time with the kids after.
If you live really, really close and have a pretty cordial relationship, it’s possible to split the days, too. You can give one parent Christmas morning until noon or one, and let the other parent celebrate in the afternoon and share Christmas dinner with the child. For a lot of families, that works great.
Keep in mind that you’ll want to remember the family’s traditions, too. And, obviously, your traditions aren’t the only ones that matter. If you give your child’s father the things that are important to him, it’s much more likely that he’ll give you what’s important to you, too.
If your families aren’t local, as is often the case, you may want to consider continuing to alternate the holidays however you did when you were married. Every family does things differently, so it’s nice to be able to continue with those important traditions. Want to make your own new traditions? That’s fine, too.
Of course, there are no rules against the two of you spending the holidays together, even if you’re separated. If, for your own sakes or the sake of the child, you decide to spend your Christmas and Thanksgiving holidays together, that’s fine, too.

The holidays are coming up, and I’m getting nervous! What can I do to make sure we don’t have any problems?

Custody and visitation, at the holidays and at lots of other times, is complicated, and there are a lot of different ways it can be handled.
If you and your child’s father are on speaking terms, you might want to open up the dialogue now. That way, you can deal with your issues head on without waiting for them to explode later. In my experience, open, honest, up front communication is generally best, especially where kids and holidays and other deeply emotional things are concerned.
You may laugh at me. That’s okay. You know your child’s father better than I do, and you certainly have a better sense than I do about whether just having a conversation will work for you. If it does, that’s great! You’re done, you’ve saved money, and you’ve put into play a framework that will help you navigate all the tricky custody-related issues that will come up before your child turns 18. Good for you!
If not, though, that’s okay, too. At this point, you might want to consider talking to an attorney, who can advise you about whether it’s better to try to negotiate custody and visitation (which you can do with or without an attorney’s help, or through a mediator which could also be with or without an attorney) or go to court to let the judge decide how things can be handled.
Sometimes, just having an attorney on your side (and your child’s father knowing that he has to pay to play, so to speak) can encourage a settlement easier than you thought possible. Remember: the goal is to reach an agreement that takes both of your needs into account and is, ultimately, in the best interests of the child.
That’s what the court will be considering: the best interests of the child. The court will use the best interests of the child factors in making a decision about holiday custody and visitation, and any other issues that might arise. Here they are:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
It’s difficult to predict ahead of time exactly what a judge will say, but he (or she) will certainly use these factors in making a decision, and you should use those factors when you’re deciding whether or not to pursue a case or considering how a case might be resolved.
Generally speaking, holidays will be alternated. If you haven’t given it any thought up until now, it’s definitely a good time. The holidays are upon us once again.
If you need help with holiday custody and visitation, feel free to give our office a call at (757) 425-5200. We can help point you in the right direction, or help you schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys.