Now that we are in the holiday season, that is, Thanksgiving, Christmas, and New Year’s Day, it’s probably time to, once again, make some comments on child holiday visitation or “parenting time.” 

Many children of divorced parents will be happily splitting the holidays between their loving and cooperating parents. Other children become the focus of the annual ritual, that is, the “fight” over which parent is entitled to have the child with them for Christmas. One would think rational parents could resolve these issues, but unfortunately during the two weeks before Christmas our court will likely see several such disputes make it on the court calendar. Some parents go so far as to retain a lawyer and bring an “emergency motion” to resolve the issue.

Minnesota law provides that the court may grant parents, grandparents, and even non-parents, visitation or what is now termed “parenting time” with a child to the extent that such visitation is in the “best interests of the child.” The court may order that visitation be “supervised” under certain conditions if the child would be endangered by unsupervised visitation. Supervised visitation typically takes place in the home of a relative trusted by both parents or at a child safety center, though there are now very few. 

Conditions for unsupervised visitation may also include reasonable conditions to protect the child, such as:

1. No use or possession of alcohol or drugs during visitation

2. No transporting of the child except by a licensed driver in an insured vehicle, and in an age-appropriate car seat

3. No disparaging comments about the other parent in the presence of the child

4. Allow child to call the other parent if they wish.

A basic and commonly-misunderstood part of visitation law is that visitation is NOT conditional upon the payment of court-ordered child support. The parent who is supposed to receive support cannot deny court-ordered parenting time because the “obligor” is failing to pay support. Therefore, the custodial parent can’t bar the child from seeing the other parent for holiday visitation because there is unpaid child support or shared medical bills.

Family lawyers and judges often suggest to parents that they use a website, such as www.ourfamilywizard.com, to meaningfully and effectively communicate and coordinate parenting time.  Parents can also obtain the recently-revised “Child-Focused Parenting Time Guide” at the Minnesota Judicial Branch website: http://www.mncourts.gov/Help-Topics/Child-Custody.aspx

When disputes arise over visitation, judges will usually require the parents to attend mediation to attempt to resolve the issues themselves before leaving the decision to the court. Parents may also use the services of a parenting time expeditor or parenting consultant to resolve issues without the expense, financial and emotional, of going to court.

If the dispute remains unresolved, a motion hearing can be held based solely on affidavits filed by the parties and arguments by their attorneys. If the issues involve contempt of court or substantial restrictions of parenting time, the court will order an evidentiary hearing to occur with live (in-court) testimony of witnesses and documentary evidence, such as school and medical records. Sometimes judges will also talk to children in the judge’s chambers (office) with only the lawyers present.

One inevitability that divorced parents seem to ignore at the time of the divorce is that their lives and their children’s lives will change. Parents embark on new relationships, remarry, move a substantial distance apart, and have more children or “non-joint” children. These folks need to be flexible and understanding to adapt to change. They also need to speak with their own parents and families about the need for flexibility, i.e. avoiding the intractable position, “but we always go to Grandma’s on Christmas Day!”

I hope that you do not find yourself in the middle of such a dispute in court. But if you do, please at least consult with an attorney before you take legal action. Consider strongly the advantages of mediation or the other resources mentioned above. Most importantly, consider the emotional toll on your child of getting the child involved in the middle of the dispute. Children are not “mini-adults.”  They will remember how you and the other parent addressed these issues, particularly during the holidays.  Keep the child’s feelings and well-being foremost in your mind. Happy Holidays!