“There is no place like home for the holidays.” So goes the opening line to a popular Christmastime song that we are all likely familiar with. It’s one of a handful of songs that is sung in the weeks and days leading up to Christmas that reinforces the special role that “home” plays in the holiday season. Anyone who has been away from home for any length of time during that part of the year can attest to how difficult it can be.
What happens when your child has two homes as a result of you and your spouse getting a divorce? How different will their Christmas be now that their time is going to be split between Mom and Dad’s houses?
Today’s blog post from the Law Office of Bryan Fagan, PLLC will cover the topic of issues that can arise in your family around the Winter holidays. What can happen and what does the law have to say about those problems? Read on to find out more.
Texas splits Christmas break into two parts
The Christmas/Winter Break holiday is split into two parts. The first part begins at 6:00 p.m. on the day that school is let out for the holiday. Parent 1 will have possession of the child until 6:00 p.m. on December 28th. Parent 2 will then take possession until 6:00 p.m. on the Sunday prior to school resuming. The following year, Parent 2 will take possession for the first half of the holiday and Parent 1 will take possession for the second half of the holiday. Obviously the parent who gets visitation during the first half of the holiday is happiest because Christmas Eve and Christmas fall during that time period.
Questions and Answers specifically about Christmas break
Let’s run through some questions that I have been asked for former clients of the Law Office of Bryan Fagan, PLLC regarding Christmas break.
Does your spouse lose holiday visitation because she has missed recent weekends with your child?
Suppose that your wife has weekend visitation with your son. First, third and fifth weekends according to your Final Decree of Divorce. Due to her work schedule and some bad planning on her part she has not been able to see your son the past few weekends that she was scheduled to. Worse yet- she did not contact you in advance. You either had to rearrange or cancel plans in order to have your son on weekends that you were not scheduled to.
Flash forward to Christmas time and you would like to know if Christmas break is an appropriate time to have these missed weekends come back and bite her. Does it make sense and can you get away with not allowing your ex-wife to see your son during Christmas Break?
No. Your ex-spouse is entitled to her periods of possession as laid out in the final decree of divorce. That decree tells you the fewest days of each year that she can be in possession of your child. You and her can agree on modifications to the schedule or to adding days to her total but you do not have the authority to restrict her visitation on your own. If you wanted to have those missed periods of possession addressed you can file an enforcement lawsuit that requests monetary fines for your ex-spouse. Otherwise, you cannot deny visitation based on past violations of your order
Can you modify the holiday visitation schedule to accommodate specific religious practices?
Here we have a situation where you are Jewish and your ex-spouse is Christian. Since your divorce the orders have always reflected that you will have your child on Hanukah and your spouse with have your child on Christmas and the Day before Christmas. It has made life easier on everyone since your important days typically do not overlap meaning everyone can be happy due to your ability to split these days according to when each holiday falls during the break. Obviously we know when Christmas and Christmas Eve will fall but Hanukah changes from year to year.
What happens if your ex-spouse sends you a text message and asks to keep your children for a few extra days after the final day of Hanukah? Are you obligated to allow your ex-spouse this time? His argument is that these extra days fall on a weekend that would normally be his during the rest of the year.
Again, the answer is no to this question. Holiday visitation time trumps regular, run of the mill periods of visitation time. Meaning: although your ex-spouse has crafted a tricky argument that you should allow the extra days of visitation being requested because those days fall on a weekend that would be his, you do not have to allow it. Of course, by agreement you can amend the order on the fly. If this is not what you want to do, however, you are not obligated to and your spouse cannot hold you responsible for failing to meet him halfway.
Threats of litigation to force you to modify a court order
Your ex-spouse has come to you and said that he wants your child on Christmas Eve this year. Apparently his brother is coming home from serving in the Marines overseas and will only be in town for a couple days. This is understandably important to your ex-spouse but you already had plans with the kids for that day. Compounding the issue is your ex-spouse’s assertions that he will take you back to court to have the order modified in the event that you do not choose to agree to this change. Can he do this?
Well, he can file a modification case if he would like but there will be some impediments to his being successful. First of all, a court will look for a substantial change in circumstances in order to justify modifying a court order. Unless a court can find that such a change has occurred your spouse would likely be unsuccessful. On top of that, unless your spouse asks you for this change in July he likely won’t get a court date long enough before Christmas for it to even make a difference.
Oral agreements are not enforceable
Our final example in today’s blog post will center around a promise that your ex-spouse made to you regarding a change in the visitation schedule for Winter break. You had phoned him last week to ask if your spouse would allow you to keep your child an extra day in order to spend a little more time together. He had agreed to your request and you had planned on seeing your kids longer than normal.
Fast forward to a few days before Christmas and your ex-spouse has called you to rescind his prior response that you could keep the kids longer than the amount of time ordered to you. You are understandably upset because he has gone back on his word? Do you have any recourse?
Unfortunately I do not see any option for you to pursue as far as having that promise enforced. The fact is that the court orders is the default by which you and your ex-spouse operate from. Oral agreements are nice- when they are followed and honored by both parties. There was nothing obligating your ex-spouse to follow your plan other than sticking to his word. If you were to attempt to file an enforcement lawsuit I don’t believe that a judge would be overly sympathetic to your cause, especially if you did not do anything like buy plane tickets or spend other money on the children in advance.
Questions on visitation during the holidays and the school year? Contact the Law Office of Bryan Fagan, PLLC
The attorneys with the Law Office of Bryan Fagan, PLLC would like to thank you for spending time with us today. If you have any questions about the material that we covered please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with our licensed family law attorneys six days a week. It would be an honor to meet with you to discuss your case and answer your questions.