Holidays can be extremely stressful for those going through divorce. For many, it’s the first time in years they have been away from their children over the holidays. Unfortunately, it’s all too common in this State. We are writing today to explore the various ways in which the court may treat a request for holiday parenting time.
Holiday parenting time must be examined from three perspectives: (1) those without a parenting time schedule at all; (2) those with a parenting time schedule that does not address holidays; and (3) those with a holiday parenting time schedule already in place.
If you do not have a holiday schedule in place, there’s good news: you are almost certainly entitled to spend time with your children. Not every holiday, but a fair and equitable division between yourself and your former spouse. Before we get into the substantive law, we feel it’s necessary to note that parenting time, visitation, and physical custody are all different terms for the same thing. They refer to being in the physical presence of and responsible for your children.
The overarching principle in custody determinations is the best interests of the children. Ultimately, the court is obligated to do what it believes will foster the children’s safety, happy, physical, mental and moral welfare. Clearly, courts have the ability restrict parenting time when it poses a threat to the child. The court has to balance the public policy which dictates that children of separated parents should be imbued with the love and respect for both parents with a consideration for the general welfare and happiness of the children.
Nonetheless, from a practical perspective, a parent is entitled to spend time with their children in all but the most extreme circumstances. In one form or another, for one length of time or another, you are almost guaranteed parenting time. The New Jersey Legislature has stated, “[I]t is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage[.]” They also required that the rights of both parents be equal in court. So, regardless of whether you are a mother or father (or both or neither), you are presumptively entitled to the same amount of parenting time as your former spouse. The best interests side of the argument comes in to determine how often, and under what circumstances you are allowed to exercise that right
What does that mean for the holidays? Courts have come up with a fairly simple solution. Generally, they will encourage (or order) parties to divide major holidays based on odd and even years. For example, the children will be with their dad on Thanksgiving in even years and with their mom on odd years, and so on for every important holiday. Courts also like to provide parenting time to each party on his or her birthday and Father’s/Mother’s day. The kids’ birthdays are typically split up as well, with the non-custodial party being provided a separate day for celebration.
Parties are free to modify this standard language. The court will order any custody arrangement agreed to by both parties unless it is contrary to the best interests of the child. For this reason, if you cannot come to an agreement, it may be wise to start from the same starting point as the court and to negotiate from there. Courts are also likely to enforce an agreement between the parties, even if it hasn’t been incorporated into an order. Be sure to get it in writing, though! You don’t want to permit the other party to argue that the agreement never existed.
If you already have a parenting time order in place, but it does not address the holidays, there are a couple of different ways that a court can treat your request for additional guidance. The first, which is not a great method, is to follow the standard procedure for modification of a custody order. A party seeking modification of a custody order must meet the burden of showing (1) changed circumstances and (2) that the agreement is now not in the best interests of a child. This is a relatively high burden. The second, and arguably better, way the Court may react is to view it as an oversight and amend the order to address holidays. This can be accomplished under Rule 1:13-1, or in any other manner deemed acceptable by the court, and is essentially within the judge’s discretion. The possibility that the court requires a showing of changed circumstances is a serious consideration, and it is extremely important that clients address holidays the first time around.
If your custody order already addresses the holidays and you hope to change it, you will have to meet the burden discussed in the preceding paragraph. A party seeking modification of a judgment show changed circumstances and that the agreement is now not in the best interests of a child. Custody orders are typically set, if not by agreement, at the time of trial. They may involve a long and extensive inquiry with evaluations by mental health professionals. For that reason, courts are reluctant to change them afterward. There are often disputed facts, sometimes including allegations of abuse from both sides. The court should then hold a trial, which is time consuming. Family courts are underfunded and overloaded with litigation in this State, and time considerations weigh into many court decisions (albeit unofficially).
That does not mean, however, that you will be unable to modify the order. Courts are always conscious of the fact that their primary duty is to protect children and to ensure their happiness and welfare. Many, if not most, judges are parents too. They understand the desire to be with one’s children over the holidays and will likely endeavor to ensure that both parties meaningfully enjoy that right. The facts of every case are different, and a decision about what is in the “best interests of the child” is highly subjective. We encourage anyone reading this post to consult with a qualified attorney before filing a request with the court.