Written by Judge Victoria del Pino | [email protected]

By the time you read this, there may be a distinct possibility that if parents haven’t agreed on their timesharing for the winter break holidays or have not included it in their parenting plan, it may be too late to get a court hearing before the holidays begin.

The most hectic time for the family court is the holiday season. Unless there is a true and warranted emergency, judges may deny an emergency motion that is only seeking to settle differences on which parent the children should spend the holidays with.

That is why it is imperative to PLAN AHEAD.

At the beginning of a dissolution of marriage or paternity case, the parties need to think ahead as to how holidays will be divided, particularly winter break. If they can come to an agreement, it should be reduced to writing and an agreed order should be submitted to the judge.  If they cannot, a hearing should be set prior to the holidays.

If the parties are in the process of formulating the parenting plan, they need to make sure to account for the small details that are often overlooked but can bring about needless litigation.

For example, a provision stating, “the parents agree to split the winter break holiday” without any other detail, leaves too much ambiguity.  Make sure to define when the winter break timesharing will start (i.e., the day after the children get out of school and at what time specifically). Christmas Day has special consideration because usually both parents want to spend some time with the children.  Include a provision allowing for a few hours with each parent if this is what the parties wish to do. Additionally, make sure to include important details on things like communication while spending time with the other parent during the holidays.  The less ambiguities, the less there is to argue about.

Regardless of what time-sharing schedule the court puts into place, holidays are supposed to be split 50/50 between the parents. For example, even if your parenting plan is such that you typically only see your child every other weekend, your holiday time should be split evenly between parents.

In Todd v. Todd-Guillaume, 972 So. 2d 1003 (Fla. 4th DCA 2008), the appellate court held that judges abuse their discretion if they split holidays in any way other than 50/50 — unless they make an express showing that a 50/50 split would not be in the child’s best interests.

The courts are well aware that holidays hold an enormous amount of emotional significance to kids and parents. Therefore, the ability to share holiday time equally with each parent is important, absent extraordinary circumstances.

If you are planning on exercising your winter break vacation out of the United States, make sure you adhere to any notice provisions in your parenting plan related to travel with the minor children as most parenting plans require a thirty-day written notice to the other parent.  If there is no parenting plan in place, try to adhere to the thirty-day notice anyways as it is customary in parenting plans. This is even more important because if there is an objection to the travel, you will have time to get a hearing in front of the judge prior to your proposed travel dates.

The reasons to withhold consent are equally as important.  One of the most common issues that occur with disagreements on withholding permission to travel by one parent over another, is doing so unreasonably.

In the last few years, the courts have seen a significant amount of international and domestic travel related motions due to Covid 19.  Although these types of motions are now much more diminished, there are still issues that may arise with both domestic and international travel.  For example, the other parent may object to an international vacation if one of the children needs specialized medical care. They may also object if the country the children are traveling to poses a significant safety issue due to high crime or are not part of the Hague Convention.

If a court determines they have denied the travel without good cause or “withholding consent unreasonably”, they may face sanctions that include attorney’s fees or an award of makeup timesharing.

Lastly, parents need to make sure the passports for the minor children are not expired. They should not wait until the last minute to renew them as it may impede the opportunity to travel.  This is one of those small details that is often overlooked but can lead to unnecessary litigation. At minimum, a provision in the parenting plan should address who should hold the passports, when renewal forms should be executed, and how many days before travel should the children’s passports be turned over.

When dealing with the holidays, the overwhelming consensus amongst all my colleagues in the family court bench is, plan ahead and do not wait until the last minute to iron out the details.