Holiday Traditions in Family Law

For some people, the holiday season conjures up Hallmark images of joy, goodwill and family. For others, the holiday season is about football, parties, and slacking off at work till the end of the year. But for the Family Law attorney the holiday season has a special meaning. This is the time of year when parents in Family Law matters with custody/visitation Orders universally exercise “unique” behavior.

I practiced Family Law in Los Angeles County for close to 40 years. This habit of Family Law litigants “unique” behavior during the holidays is a long-standing tradition. One of the reasons for this behavior is the way holiday Orders in Family Law matters are structured.  In LA county, the standard Family Law Order for holidays is called a Freeman Order—named for ’70s-era Family Law Judge Marvin Freeman. This standard order provides that the Christmas holiday be shared and alternated yearly by the parties. For example, Parent A would have the children from sometime on Christmas Eve day until sometime (usually 10AM) on Christmas Day. At which time, parent B, would have the children until sometime on December 26. And the following years the parties would switch the Christmas Eve/Christmas Day arrangement.

Seems simple, right? Not in Family Law.

Christmas Day seems to be the cause of most of the problems. I had a client who went to  pick up his 8-year-old son on Christmas Day at 10AM from his ex-wife’s house. The eight- year-old came to the door dressed in his pajamas.The ex-wife stated that this was how all 8-year-old boys are dressed on Christmas Day at 10AM.

In the pre-cell phone age, another client of mine went to pick up her children on Christmas Day from her ex’s home. She arrived at the Ordered time to pick up her three children, but they were not ready to leave. My client’s ex told her that despite his sincere best efforts, the children were just not ready. It was, after all, Christmas morning and the children were busy playing with their new toys. My client was invited in and told she could wait inside and enjoy some eggnog with her ex’s relatives (all of whom—since the divorce—hated her). She declined the invitation and waited outside an hour and a half for the children.

And this type of behavior was not exclusive just to my practice. Michael Kretzmer, Esq., who specializes in high-conflict child custody cases, once received seven phone calls from the police regarding Christmas Day problems.

“Seven different cases,” Kretzmer recalled. “That was my Christmas morning.”

Then there are issues that arise prior to the Christmas holidays, but deal with Christmas. Often the Thanksgiving holiday would create a problem. Putting aside the issue of how to share that holiday (which has grown from sharing the day, to sharing the four-day weekend, to  sharing the entire week), the problem would often involve to whom the children were exposed during the Thanksgiving celebration. Often, clients would tell me that while the children were celebrating Thanksgiving with the other party, the children repeatedly heard disparaging remarks about them, made by the other party’s relatives. The solution to this problem—as some clients suggested—was to get an Ex-Parte Order from the Court requiring the other parent to prevent the children from being exposed to such remarks. One can only imagine the complex choreography required to keep the minors away from inebriated, outspoken relatives eager to share their opinions about the absent parent.

This all explains why Family Law attorneys call this time of year the Ex-Parte season.

The Ex-Parte season, as defined by William Spiller, Jr., an attorney whose practice focuses on minors’ counsel work, starts “about the beginning of October and runs through December 23, interestingly, not December 24.” And during this “ex-parte season” the parties will seek ex-parte relief for many things.

As Spiller says: “It is amazing how many parents do not remember that Christmas is December 25, every year.” And often this lack of planning can make a tenuous situation even more complicated. “For example,” as Spiller says, “there might be the same dad and three different mothers with five kids. So from that parent’s perspective, ‘Well, I need all of the kids because these are my kids and I want to celebrate them.’ Well, that completely disregards the other party and the other family.” And more importantly, as Spiller points out, this “does not constitute an emergency of the type where relief can be granted.”

Going through a Family Law matter where custody/visitation is an issue can be very stressful. Often clients will be more focused on the immediate arrangement for the children, rather than the holidays, which may be many months away. And relationships and life arrangements change and develop, and the situation at the time of the holidays may be different than when  the holiday schedule was finalized.

Clearly, bad behavior by a party (such as the 8-year-old in his pajamas during the Christmas Day exchange) is something a Court can address, but most holiday kerfuffles remain outside of the purview of the Court and remain kerfuffles.

As Kretzmer says, “the only power we have in family law court and in custody is the power of persuasion. Contempt doesn’t really work for any of this stuff.” Rather, Kretzmer encourages his clients to take the long view. “At some point in the future,” Kretzmer tells his client, “your child is going to be graduating from high school or college or is going to be getting married … is this really the memory that you want your kid to have from this Christmas?”

A forensic child psychiatrist once told me that in the Family Law arena, lawyers are not just attorneys-at-law but also counselor-at-law. During the holidays, it is often the latter title that is the skill the client needs. And Family Lawyers exercising that skill during the holidays is another Family Law tradition.