Who gets the kids for Christmas can be a major dispute among divorced parents. Photo / 123rf
Who gets the kids for Christmas can be a major dispute among divorced parents. Photo / 123rf
Welcome to Sisters In Law, a news.com.au weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help someone over custody arrangments at Christmas.
QUESTION:
My ex-wife and I have been separated for five years and divorced for almost four. We've got two beautiful kids together who are six and seven. When we broke up our divorce turned acrimonious, bitter and nasty. We had to go through lawyers to sort out custody for our kids as it got to the point where we couldn't speak without shouting at each other.
Eventually we settled that my ex-wife would have them Monday to Thursday and I'd take them Thursday to Sunday which has worked well.
This year, Christmas Day is on a Friday so I readied myself to have the kids. I've got a new wife and kid and we were really excited to have it together. But then my ex-wife texted me to say she'd have our kids as she lives alone and I "have a new family" to spend it with.
She's going completely against the terms of our custody agreement and I'm livid. She's already told the kids they're spending it with her like it's case closed. I really don't want a Christmas Eve showdown with her when I go to pick them up. What are my rights? – Kara, NSW
Alternative arrangements can usually be made for special occasions like Christmas. Photo / 123rf
ANSWER:
Christmas is supposed to be a time of joy, however for some families it can unfortunately be a really tricky and challenging time of the year.
We assume that because you received advice from lawyers at the time of your divorce you have either an agreed 'parenting plan' or 'parenting orders' that were made by the Family Court.
You refer to a custody agreement which is terminology commonly used to describe a parenting plan under the law.
It will be this plan or any parenting orders that specify your current parental responsibilities, that is, the Monday to Thursday, and Thursday to Sunday care arrangements.
The purpose of both parenting plans and parenting orders are to set out the care arrangements for your children, however only parenting orders are legally enforceable.
It is common for plans or orders to outline alternate arrangements to the usual care arrangements for special occasions or celebrations, such as Christmas, birthdays and Mother's Day.
Usually the plan or order will allow for each parent to spend time with the children for the special event.
You should carefully check your plan or order to see if this has been considered.
Assuming it doesn't allow for different arrangements at Christmas, then you have the right to care for your children as per the usual arrangements.
Your ex-wife's position that she is entitled to the children on Christmas Day because she lives alone and you have a new family is not something considered in this situation.
Under the law, one parent is not more important than the other.
The overarching factor is that the arrangements are to be in the best interests of the children.
It sounds like you and your ex-wife have already tried to resolve the issue without the involvement of the court which is obviously the cheapest and quickest way to resolve a dispute.
Who gets the kids for Christmas can be a major dispute among divorced parents. Photo / 123rf
Because it is your ex-wife who is wanting to change the arrangements, she is the party that would need to take further steps if she wants to have the change made.
Assuming you have a parenting plan in place, and not orders of the court, she would need to make an application to the court for parenting orders.
Even though a parenting plan cannot be enforced, it may be relevant to the court's decision as evidence of the arrangements that were in place.
Again, in making any orders, the court will consider what best serves the interests of the child.
As you would be aware, in some disturbing situations, one parent has kept the children in contravention of a parenting plan or parenting orders.
Only parenting orders create legal obligations. If one parent does not comply with the orders, for example, they keep the children in their care beyond the specified days, then the other parent can go back to court to have the order enforced.
In this situation the court can make various orders and issue penalties to help prevent problems in the future.
We hope the issue resolves itself in advance of Christmas.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
