Divorced Parents – Who Gets The Kids On Christmas Day?

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It’s the time of year when families traditionally get together to celebrate the holiday, season, with presents, parties and plenty of treats. Sadly, for some divorced parents, it’s also the time of year when goodwill is in short supply and even Santa can’t solve  problems relating to child access issues.

Siobhan Rooney, a Partner and Head of the Family Law department at leading and award winning regional law firm Pictons says “Even more than summer holiday time, Christmas is the season when every family wants to celebrate and be with their children and grandchildren. While many divorced or separated couples manage to deal with the Christmas holidays on an amicable basis, there are others for whom Christmas becomes a war zone rather than a happy time.

“Everyone wants to see the look on their children’s faces as they open their longed for presents or give something to a grateful grandmother. However, if child access hasn’t been agreed there can be the bitterest of disagreements on who gets the children on Christmas Day especially.

“As a qualified mediation specialist as well as a family law solicitor I would always advise parents to make decisions based on what’s best for their children and what would make them happiest. Sometimes parents must put any resentments aside and enjoy Christmas morning if not the whole day together.  If that is not possible then it works best if one parent can agree to giving the children an extra special ‘second Christmas Day’ on Boxing Day.

“In cases where children are being taken on holiday this isn’t possible. There are complex regulations about taking children on holiday abroad, especially if the other parent has been awarded parental responsibility. The key to planning a Happy Christmas is taking advice early on so you understand your rights and responsibilities and to allow adequate time to try and resolve such issues to avoid unnecessary court proceedings.  It is also better to be upfront with the arrangements including flight details, accommodation and emergency contact numbers.

“Where the family court has not had to determine arrangements for the children, then parents with parental responsibility have an equal say on major issues. This includes taking a child outside of the UK, even for a short holiday.  If the consent of the other parent is not obtained, this would be seen as child abduction. A disgruntled parent who has not consented could apply to the court for orders preventing the holiday taking place or for the child’s return. General disregard of the need to obtain consent could also work against a parent in future proceedings concerning their child.

“However, the position is different if there is a Child Arrangements Order in place, which provides for where the child will live, in what used to be called a ‘residence order’.  If so, the ‘resident parent’ is able to take the child out of the jurisdiction for up to one month without requiring the other parent’s consent. Again, care needs to be taken to make sure the holiday does not frustrate arrangements within the Order for the child to spend time with the other parent. If the holiday will impact on the terms of the Order, consent to vary the Order needs to be obtained or you could find yourself in breach and subject to enforcement proceedings.

If you need help or advice on your own situation with regards to Child Arrangements or any other children matters then call Siobhan or one of her team on 0800 302 9448 or email siobhan.rooney@pictons.co.uk

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