Creative Approach to Visitation Scheduling Helps Preserve Holiday Traditions

For a divorce, it has been as amicable as possible. But the inevitable disputes over property and finances have left everyone drained. With the primary custody questions finally settled, the only thing left to discuss is the holiday visitation schedule. Luckily, Texas has an established standard possession order, spelling out how holidays should be divided.

Well, perhaps “lucky” pertains just to the attorneys who are often anxious to help their clients move on by suggesting that they accept what is a seemingly fair holiday schedule. After all, why risk reigniting the battle so close to final approval?

But all too often “lucky” is the last word that parents, and even fewer children, will choose after accepting at face value a rote agreement and learning in short order that “standard” agreements are rarely one-size-fits-all propositions.

It is the fine details, what some might consider minutia, that ultimately spell the difference in successfully representing your client and successfully representing your client’s best interests. Before encouraging the acceptance of a standard possession order, carve out time for a heart-to-heart with your client to talk about the religious and secular holiday activities and traditions that are the most meaningful to them and their children.

Armed with this insight, you can take a creative approach to almost every element of the standard agreement, particularly how visitation is assigned in relation to Thanksgiving and Christmas/Winter Break.

It should be noted that although differences in religious beliefs may be a contributing factor to divorce, this sometimes can actually make it easier to craft an equitable holiday visitation schedule. This is particularly true in instances where the parents are of differing faiths, where their holy observances may coincide only briefly on the calendar, allowing each parent to share specific religious observances with their children.

While the children may be giddily counting down to Dec. 25, it is not necessarily a view shared by their divorced parents who are tasked with scheduling school and church events, family activities and gift-giving, and other special traditions within the framework of their visitation schedule.

Under a standard possession order, visitation is divided into two halves. The first beginning on the day school is dismissed for the holiday break, and ending at noon on Dec. 28. The second half concludes the evening before school resumes in January. Visitation order flips each year between the custodial and non-custodial parent.

As equitable as that may seem, in practice it may not fit the unique needs of a family where, for instance, the father’s birthday is Dec. 23, or the children have always spent Christmas Eve with the mother’s family. Here is where counsel’s creative problem-solving should come to the forefront.

If you know what traditions and observances are the most important to your client, you can offer additional visitation in the spring in exchange for specific holiday time, or look at adjustments to the pick-up schedule.

Unlike Christmas, where custody is split to assure a certain amount of time is spent with each parent each year, under a standard agreement the entire Thanksgiving break is awarded to just one parent, with custody alternating each year. In most cases, this will mean a period of approximately 10 days where a parent will have uninterrupted custody. Depending on school schedules or other special instances this time can be extended to 14 or more days.

However, for some parents the thought of being surrounded by family while separated from their own children for the entire day is untenable. Many parents have found that splitting custody on Thanksgiving Day – with custody changing at noon or mid-afternoon so that the children can spend time with both parents – to be more agreeable to everyone involved.

Distance, however, can complicate any holiday visitation schedule and may necessitate a creative look at agreement arrangements.

Although talk of “holidays” almost always conjures images of a December wonderland, dedicated family law attorneys should take a long look at the entire year as a whole to determine a comprehensive visitation plan. Mother’s Day and Father’s Day are sacrosanct, but religious observances such as Easter, and other holidays including July 4, are not covered under a standard custody order.

Family Law attorneys hold a unique place in helping to rebuild the lives of their clients. But as important as making a fresh start is to the rebuilding process, so too is being able to continue to hold on to emotionally fulfilling activities. It is incumbent as their counselor to have a full understanding of what matters most to a client and working to help preserve these traditions.

Keith Nelson is a partner in the Dallas office of the Family Law boutique Orsinger, Nelson, Downing & Anderson, LLP. His family law practice includes a special emphasis on addressing the psychological impact of custody and divorce litigation on children and their parents. He also has served on the Texas Supreme Court Child Support and Visitation Guidelines Committee, which promotes proposed changes to the Texas Family Code for the Texas Legislature.