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Defining “Holidays” for purposes of Custody and Visitation

Thanksgiving 2009 is fast approaching in three days! ‘Tis the season for many phone calls from clients to attorneys about who should get custody of the children during Thanksgiving, Christmas, Hannukah, New Years etc. Before a holiday weekend, family law attorneys usually anticipate on receiving phone calls involving who has custody of the children during the holidays. If there is no prior written agreement in place, then good luck! This is why the attorneys at the Law Office of David P. Schwarz recommend that all agreements be put in writing. Period.

Below are a list of a few problem areas I often notice in poorly written Stipulation & Orders and Judgments relating to defining holidays:

1. Failure to define a beginning and end time for a particular holiday: Some Stipulation & Orders and Judgments will often state “Mom shall have custody of the children for Thanksgiving in odd numbered and Dad shall have custody in even numbered years”. To a layperson, said provision appears pretty defined. However, to a family law attorney, we have many problems with this provision. For instance, how is “Thanksgiving” defined? Should it be defined by the actual Thanksgiving holiday from morning to evening? Should it be defined and allocated based on the Thanksgiving weekend from after school on Wednesday prior to Thanksgiving day to Monday return to school? Make sure your Stipulation or Judgment clearly defines what the holiday entails.

2. Mutual Agreement: I cannot tell you how many Judgments I have come across that call for the parties to “mutually agree” on a visitation schedule for the holidays. Unless the parents are cordial, can co-parent effectively and can communicate well, the words “mutually agree” should not be used in a Judgment. Ever. The parties are going through a dissolution and 90% of the time the parents are angry and will not agree to anything. To avoid future conflict, make sure all provisions set forth in a Stipulation &Order or Judgment are clear cut and have definitive timelines and parameters as to who gets custody of the children and when. Giving the parents the burden to “mutually agree” only causes future conflict.

3. Transportation: The issue of transportation is often times not spelled out in a Stipulation & Order or Judgment. Parents should make sure the Stipulation & Order or Judgment is clear with respect to who is picking up the children and who should be dropping them off. If the parents live on opposite sides of town, it is imperative that these transportation provisions be spelled out clearly and concisely.

For more information on drafting custody and visitation agreements, please consult an Orange County Family Law Lawyer.

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