Home for the holiday, but whose?

What happens when your child’s holiday schedule conflicts with the regular visitation schedule? 

Let’s say you are a divorced mother who normally has the children at home during the school week, including evenings and overnights, according to your parenting plan. You have been looking forward to having Christmas this year, which falls on a Tuesday, so that your kids can celebrate with their grandparents, who are coming from out of town.

When your ex calls to discuss when he can pick up the kids for Christmas, pointing out that on even years they are with him for the holiday, you have a disagreement about whose right it is to celebrate with the children that day. Which trumps: the general provision that the children are with you during the week or the specific holiday provision in favor of your ex-spouse? 

Parenting plans 

A parenting plan is a detailed document that sets out how parents will share or split custody, parenting time and visitation. In Florida, it should include a detailed schedule that settles where the children will live primarily and how the parents will share their children’s time. It should include a weekly and weekend schedule during the school year as well as how summers, holidays, school breaks, birthdays and similar events will be divided. 

A parenting plan may be the result of negotiation or mediation between divorcing parents that is incorporated into the final divorce decree if the judge approves it. If the parents cannot agree to the terms of the plan, the judge must craft it according to what would be in the children’s best interests. 

What does the law say? 

In the fictional example above, the plan could include a provision that says how to resolve a conflict between a special and general provision such as a special holiday versus a general weekly provision. If the plan is silent about this, we can look to Florida case law. One Florida court said that in a contract, (which a settlement agreement arguably is), “where there are general and special provisions … relating to the same thing, the special provisions will govern its construction over matters stated in general terms.” 

Another court decision in construing a marital settlement agreement explained that contract ambiguities should be “resolved in accord with the best interest of the children.” The question then may be whether the parenting plan provisions are really ambiguous or whether the specific provision should govern. 

Seek legal counsel 

The bottom line is it depends first on what your parenting plan actually says, whether it is clear or whether it needs interpretation. It may contain a provision about how to resolve conflicts in the language or interpretation between the parties. Sometimes, an agreement includes a provision that if a holiday interferes with regular visitation, the parent who loses out on regular visitation time gets to make up the lost time. 

Your circumstances and agreement are unique, and an experienced family lawyer should be consulted as soon as possible (especially if the holiday you are concerned about is approaching) to understand what legal remedies may be available. 

From a practical standpoint, you and your ex may be able to negotiate a solution. If need be, negotiation can be conducted through your respective lawyers. In escalated holiday disputes, you can ask the court to interpret your parenting plan. An attorney can also advise you on whether seeking a modification of the parenting plan in court is an option in your situation.

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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