The Ex-Files: How do we resolve who gets the kids over the Christmas period?

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OPINION:

Q: My ex-partner and I are in the process of separating. While we made plans together early in the year, we want to go our separate ways during the holidays and take our kids with us. How do we resolve who gets the kids over the Christmas period? And how can I make sure that my ex-partner is respecting the safety restriction currently in place due to Covid-19?

A: While Christmas should be about being thankful for what you have, this year has seen the complication of Covid-19, as well as the stress of organising extended family under the possibility of another lockdown. Add to this the difficultly of going through a separation, and it can become overwhelming for ex-partners to organise who gets the kids.

For parents who are in the process of separating, established plans may be thrown aside as each partner feels that they have the right to be with the kids over the Christmas period. Parents can become confrontational and feel that Christmas is a competition, not a holiday. However, approaching the Christmas season from an oppositional point of view does no favours to anyone, least of all the children.

How can you make this time as easy as possible for all involved? Communication and compromise:

COMMUNICATION

Though you may feel that your ex-partner has been unfair, or that they are making plans to exclude you from your kids, the fundamental rule of making Christmas work while separating is communication.

This means being open with your kids about what is happening between mum and dad (within reason, there is no need for unnecessary worry). It also means being honest with your soon-to-be ex-partner about what you want. This allows you can come to an agreement that suits both of you.

Communication goes both ways. Just as you should let your kids know what plans are being made over Christmas, your kids need to feel that their voices are being heard.

During a separation, kids can feel like that have lost control and that they have no say in what happens to them on a day-to-day basis. If they feel that their parents are taking them seriously, and paying attention to any worries they have, then this can give them more stability.

If you expect your ex-partner to listen to you, you need to listen to them. This means being open and honest with each other, and it also means taking the time to appreciate and listen to the concerns your ex-partner has. You need to account for what they want when deciding what is achievable for you both.

COMMUNICATION AND COVID-19

Covid-19 has also drawn attention to the fact that face-to-face meetings are great, but not always necessary. Setting aside 90 minutes or two hours with your ex-partner to talk things over via ZOOM or SKYPE can be just as productive as actually sitting down together. This also avoids the hassle of balancing your schedule around having to meet them somewhere.

If you are unwilling to meet face-to-face as a result of separation, then this alternative is even more appealing.

COMPROMISE

Christmas Day can seem like the holy grail of days to spend with your kids. However, you need to keep in mind that your ex-partner will be thinking the same thing. It is impossible for you to both get everything you want. You need to be realistic about the time you have with your kids.

At the end of the day, one of you will spend Christmas morning with the kids, and one of you will not. Establishing that one parent gets Christmas Day while the other gets Boxing Day is an easy compromise, and it allows the kids to spend equal quality time with each parent.

One strategy for compromise is to sit down with a list of dates you wish to spend with your kids. Having a plan about which dates you are willing to give up, so that your ex-partner can have equal time with them, is also a good idea.

Making a plan in situations like this can help give the discussion between you and your ex-partner some structure. This can help when you feel like you are going back and forth on the same issues time and time again.

In a perfect world, you would be able to spend all the time you want with your children. Separating will always make this difficult, and Christmas is no exception. As much as you want to be able to be with your kids for the entire holiday period, your ex-partner will want to do the same. You need to find a middle ground that is fair to both of you. You need to compromise.

COMPROMISE AND COVID-19

It's possible that you and your ex-partner have different ideas on the seriousness of the current global pandemic. With any issue regarding the health of your children, this is a guardianship decision. This means that both parents have to have a say as to what they believe is best for the kids.

If you are worried that your partner is not respecting your wishes regarding wearing masks and social distancing, then making these concerns formal by way of a parenting agreement is the safest way to go.

A parenting agreement is something that both parents agree to, and sets boundaries for who spends time with the kids on different days, at which houses they sleep at, and so forth. You could also have it include rules about risk taking and respecting government recommendations while Covid-19 is still present in NZ.

If you wish to make a parenting agreement legally binding, you can go to the family court to turn it into a consent order. This does not change any terms of the agreement itself, it only makes the agreement enforceable by the courts.

Where you are worried that your ex-partner is not going to listen to your concerns, and will not follow government mask recommendations, this is the safest option.

IF COMPROMISE AND COMMUNICATION DOESN'T WORK?

Informal mediation

An informal mediation would involve the introduction of a trusted friend of family member. They can facilitate discussion, asking each party questions from a non biased point of view. If you are struggling to communicate with each other effectively, you should consider communication counselling. It would be helpful no matter which method of resolution you choose to pursue. You will have a co-parenting relationship for the rest of your child's life, so it is important you try to communicate well.

Formal mediation

If you would prefer to attend a formal mediation, there are a number of Family Dispute Resolution services available, such as Fairway or the FDR Centre. Dispute resolution services continued to operate throughout lockdown, so as we come out the other side they will still be operating in an online capacity, where you can send in emails or reach out over the phone.

Litigation

While this method will lead to a guaranteed result, it is also the most expensive. It is also the most confrontational. We recommend settling disputes out of court, where you and your ex-partner are not directly opposed to each other. That being said, you can go to the courts to get a parenting agreement enforced where your ex-partner is not complying with the terms you agreed to.

Keep in mind that at the end of the dispute, you will both still play a role in the life of your kids. Coming out the other side and being able to remain civil with your ex-partner should always be the goal.

CONCLUSION

While it can be difficult to spend this time of year apart from your kids, open and honest communication with your ex-partner about what you both want allows you to make the best of the situation.

Keep in mind that they care about your kids just as much as you do. Be realistic about what compromise best suits you both. No one wants to turn Christmas into a contest. Keep the interests of your kids at heart.

Merry Christmas to everyone, and congratulations on making it through this unpredictable year!

- Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.