Often times parties leave deciding the issue of who will have parenting time with the children during the holidays until the last minute. Maybe the parties are dreading the argument that will inevitably ensue. Maybe the rush of the holiday season has put this issue on the back burner. However, any delay in addressing this issue is a mistake.
Dividing the holidays between parents is perhaps one of the most difficult aspects of any divorce. Understandably, both parents would like to spend the holidays with the children. The parties are free to come to an agreement between themselves. Perhaps the Father spends Christmas Eve with the children and the Mother spends Christmas Day with the children or vice versa. If the parties are able to amicably decide this issue- Great! Problem solved. However, many times, it is not quite that simple…
Parties that are unable to arrive at an agreement must apply to the Court to decide this issue. However, in the situations where there is an existing Final Judgment of Divorce, the parties should first refer to their Property Settlement Agreement. This Agreement should address the issue of holiday parenting time. The provision in the Property Settlement Agreement controls.
However, parties that are currently going through a divorce or parties that have a Property Settlement Agreement silent on the issue have a more difficult challenge. They must either come to an agreement between themselves or apply to the Court to decide who gets the children for the holidays. This is where any delay will hurt you.
Pursuant to the New Jersey Court Rules, a motion must be filed at least twenty four days in advance of the return date (i.e. the Court date on which the issue will be heard). Therefore, a motion to address the issue of holiday parenting time must be filed well in advance of the holiday itself.
Many times, parties wait to contact a divorce attorney until the week before the holiday. The attorney must then file an emergent application with the Court. These emergent applications are seldomly successful because the party must show that “irreparable harm” will occur if their application is not granted. That is a very, very high burden of proof to meet. If the Court does not agree that irreparable harm will occur of the parent is not awarded holiday parenting time, it will refuse to consider the application, and you are right back where you started.
The moral of the story? Be sure to contact a divorce attorney to address any holiday parenting time issues well in advance of the holiday itself.