Will Santa Know Which House to Visit?

Many lawyers simplify the divorce proceeding for their clients by establishing upfront that there are five distinct issues to resolve. These include property division, alimony, child custody, visitation, and child support. For divorce litigants with minor children, however, custody and visitation are very often the most difficult points of contention. 

Through the negotiation process, litigants and their lawyers exchange proposals which are ultimately memorialized in a parenting plan, which most likely includes provisions for alternate weekend visitation, mid-week visitation with the non-custodial parent, and sharing of the child(ren) during periods of extended school recess. Holidays, such as Christmas and Thanksgiving, must also be rationed between parents. These uniquely frantic times become even more challenging for divorced parents and their minor children. Divorce attorneys earn a living by skillfully dividing assets among parties. Clients may be content in splitting furniture, automobiles, or real estate right down the middle. Some lawyers propose the same for minor children. A common Christmas visitation schedule may set forth visitation with one parent extending from 6:00 p.m. on Christmas Eve until 12:00 p.m. (noon) on Christmas Day. The other parent would then visit with the children for the remainder of Christmas Day. Although the parents may agree that such a plan is “fair” as it apportions equal time with the children, it creates unintended negative consequences.

First, such exchanges certainly limit, and may destroy, holiday traditions. If it was customary for a parent to visit with family in another state during Christmas, this tradition would be in jeopardy given a plan which requires the parents to exchange the minor children in the middle of Christmas Day.

Second, most divorced parents would acknowledge that anxiety increases during times of exchange. As such, doing exchanges in the middle of a holiday (which are no doubt already frantic in any household) will facilitate stressful occasions and yield unhappy memories.

Third, younger children may worry about things the parents never even considered. “Will Santa know that I’m at my dad’s house this year?” “Will I get to take my new toys over to my mom’s house after I open them?” A solution to the aforementioned problems would be to eliminate the exchange on Christmas Day. This can be done in one of two forms. First, parents may split the holiday in even and odd years instead of implementing the mid-day exchange each year. When one parent knows that he/she will have the children every odd year, this permits the parent to plan out-of-town trips and eliminates the increased tension of unnecessary exchanges. Second, the parents may agree to have two Christmases each year. One can be celebrated on December 25, whereas the other can be celebrated another day in December, such as December 18.

Children who live in two houses feel much happier when they get two holidays rather than one split holiday. The parents could then alternate years in which they get to visit with the children on December 25 as opposed to the alternative date. In short, parents and lawyers need to resolve issues of custody involving holidays so that the children can experience happy times rather than a celebration filled with heartache and anxiety. This can only be accomplished by drafting parenting plans which suit the needs of children rather than the desires of the divorcing parents.

Benjamin Porter is a Staff Attorney with the Atlanta office of Cordell.

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