Over the last several decades, media around the practice of law has presented some of…
For many parents with custody orders, the holidays can be a significant conflict source. While each court order is different and parents are allowed to make other arrangements by agreement, there is a standard approach that the Texas Family Code takes when handling Christmas possession arrangements after a split. In Texas, the standard possession order provides for the child spending every other year with each parent, for both major holidays (Thanksgiving, Christmas, and New Year’s Eve), as well as school vacations for custodial and noncustodial parents.
Determining parenting responsibilities can be a complicated process for any parent. Even with a custody order in place, there may still be some confusion around the holiday season.
How is Custody Determined?
Custody is a legal term used to describe the legal relationship between a parent or guardian and a child. Custody covers a range of factors, including where a child will live, what school the child will attend, and who has the right to make medical decisions. Generally speaking, there are two primary parts of custody arrangements:
Rights and Duties
Rights and duties of a conservator addresses the important decisions that a conservator has the legal right to make on behalf of the child. It covers:
- Religious upbringing
- Medical decisions
- Psychological decisions
- Legal decisions
- and more.
Possession determines who has possession of the child and when.
Many co-parents have some form of joint conservatorship. In other words, both parents have the right to make or be included in important decisions for the children. Generally, when it is time to make a decision concerning the child, the parents should work together to do what’s in the best interest of the child.
What is a Custodial and Non-Custodial Parent?
Both parents are important to a child. However, to determine a parenting schedule, the law defines parents by whether or not they have primary physical custody of the child. The definition of custodial and non-custodial are as follows:
The custodial parent is also called the managing conservator. This parent is typically who the child primarily resides with.
Also referred to as the possessory conservator, the rights of a non-custodial parent depend largely on the custody order the court puts in place. Typically, these parents will have access to the child on a defined schedule, such as every other weekend and one weeknight, spring break, summer, and the holidays.
What is the Standard Holiday Season Visitation Schedule in Texas?
Because the holidays are a coveted time that can lead to disputes between co-parents, the Texas Family Code provides a holiday schedule as part of the Standard Possession Order. The holiday schedule is generally the same, regardless of the distance between the custodial and non-custodial parents’ residences. In addition, this schedule overrules conflicting weekend or Thursday periods of possession.
For Christmas, Texas Non-Custodial Parents Generally:
Have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for Christmas vacation until Noon on December 28.
Have possession of the child in odd-numbered years beginning at Noon on December 28 until 6 p.m. on the day before school resumes after Christmas break.
For Christmas, Texas Custodial Parents Generally:
Have possession of the child in odd-numbered years beginning at 6 p.m. on the day the child is dismissed from school for Christmas vacation until Noon on December 28.
Have possession of the child in even-numbered years beginning at Noon on December 28 until 6 p.m. on the day before school resumes after Christmas break.
In Texas’ standard possession order holiday visitation, the parent who does not have the child on Christmas will have the child on Thanksgiving and New Year’s Eve.
What Counts as a Denial of Visitation?
Children do best when co-parents can work together in a flexible and cooperative way to develop a schedule. Each child is unique, and it’s best if parents work together to meet the needs of their children. However, when that does not occur, parents may be at a loss of how to enforce visitation orders.
In order to get your visitation orders enforced by a court, you will need to show a pattern of denials. To prove a denial, you will need the following:
- Visitation orders that clearly state a time, place, and date to exchange the children.
- Proof that you showed up at the exact court-ordered time and location of the exchange.
- Proof that the other parent did not comply with the order. A text message showing the other parent’s intent to prevent you from having possession of the child is not enough. You must go to the location on the correct date and time ordered.
- Record the names of anyone who witnessed the denial of visitation or the incident number if the police were called.
- Keep a visitation journal to show a pattern of violations of the order by the other parent. In this journal, write down what happened on the date in question. For example:
“I arrived at 5:55 p.m., I waited for 20 minutes for the other parent to show up, they never appeared. No call/text response from the other parent.”
- If you purchase something while waiting on the other parent for an exchange, make sure you save your receipt to prove you were in the correct place at the correct time.
What Can I Do If the Other Parent Denies My Christmas Visitation?
While friends and family may tell you to get the police involved, police will often claim visitation denials are a civil matter. Police officers typically prefer not to get involved unless a dispute rises to a criminal matter.
“Depending on the department, police officers may read the court orders and try to assist in a resolution for the parties,” Carlson Law Firm attorney Cheryl Powell said. “However, they are unable to enforce the policy because it is a civil matter.”
To resolve the matter, Cheryl says that a parent has two options:
“A qualified family attorney can help a parent Petition for Writ of Habeas Corpus,” she said. “If granted, the Writ of Habeas Corpus requires the person that has the child to appear in court with the child. In addition, the parent can ask for a Writ of Attachment directing the child’s delivery or return.”
Notably, if a parent withholds the child on more than one occasion, then the second option is for a parent to file a Motion for Enforcement.
“The length of time these matters take to resolve depends on the court’s schedule,” Cheryl said. “It’s important to remember that a parent who denies visitation can be held in contempt by the court, and be fined and jailed.”
Christmas Custody: Tips to Co-Parent with Ease this Holiday Season
The holidays are a chaotic time even under the best circumstances. But when you balance the additional obstacle of co-parenting and holiday visitation schedules, the season for joy can become more complicated. Remember to keep your children’s well-being as your top priority. You can keep your sanity and do what is best for your children by following these simple tips.
Try to Be Flexible
Even with a written, court-ordered agreement, things come up. For example, more than 50% of U.S. families are remarried or recoupled. As a result, the other parent may need to be in two places at once, such as picking up children a few hours’ drive away at the same time they need to pick up the child you share together. If you both can agree to a pick-up time that works for both of you, then do it. As long as there is no flat-out denial of time with your child, being flexible and cooperative can make your holiday stress-free.
Co-parenting is not easy. However, learning to communicate with the other parent openly and honestly can prevent misunderstandings. While texts can be helpful with documentation, they can also lead to misunderstandings. Even in casual conversation, the tone of a text message may be lost or misinterpreted. However, the stakes of misreading a text between co-parents are incredibly high. Picking up the phone to discuss holiday arrangements can save you from holiday visitation headaches and frustrations. However, it’s best to get the final agreement in written format to ensure everyone is on the same page. This could look something like: “Just confirming our agreement for me to pick up the children on December 29 at 6 p.m., at the usual McDonald’s.” Keep in mind that it is OK to make some concessions and ask for concessions in return.
Keep Your Child’s Best Interest at the Forefront
Many former couples get trapped in the mindset of what the other parent is doing or has done wrong. Thoughts like “she wants to control everything” or “he’s selfish” can muddy the waters on what’s truly in the best interest of your child. By recognizing that your children need both parents in their lives, you can make your holidays easier. Children need and want relationships with both of their parents and extended family. Put your child’s needs above your pride and support your child’s relationship with their other parent.
Contact a Qualified Family Law Attorney
Family matters can be complicated to navigate during the holiday season. However, you do not have to stress over whether or not you will be able to see your child this holiday season. If you are in a situation that requires assistance with the court, contact our firm. The Carlson Law Firm offers free consultations with knowledgeable family law attorneys.
“With a qualified family law attorney, you can be confident that we will use our extensive legal knowledge and resources to pursue your ideal outcome for your case.”
-Cheryl Powell, Family Law Attorney
The Carlson Law Firm Can Make Your Holidays Smoother
Children thrive with a routine. And even if they do not get to spend every holiday with you, knowing what to expect each year can make the Christmas season a better experience for both parents and their children. If you are considering a divorce, understand that your transition into co-parenting doesn’t have to be a difficult one. Or, if you were never married to your child’s other parent, you don’t have to beg to see your child on Christmas or other holidays. Establishing a custody agreement will ensure both parents are getting equal treatment after a split year-round.
Contact The Carlson Law Firm to discuss your options with a Board-Certified Family Law Attorney. Our compassionate and knowledgeable family law attorneys can answer your questions about custody arrangements during the holiday season.