Divorce and Christmas – who gets the children?

How to agree Christmas arrangements

If you’re recently separated, then it’s quite likely that you haven’t yet had to deal with this.  There’s a variety of options available to you, including:

• You might agree that the children will be with you for Christmas this year, and with the other parent next year,
• You might agree that if one parent has them at Christmas, the other parent might have them at New Year.

But what does “Christmas” mean?  For some it means Christmas Eve and the whole of Christmas Day, perhaps overnight into Boxing Day too.  For others it might mean they wake up in one bed on Christmas Day and go to sleep in the other bed on Christmas night.  You need to be clear with each other so that there are no last-minute misunderstandings.

Anything you agree should, of course, be based on whatever is best for the children.  Children young or old may not want to leave one house partway through Christmas Day and may prefer to stay put for the whole day.  That can be hard for the other parent – particularly if the children are very young – but if that’s what’s best for the children then that parent can look forward instead to having a whole other Christmas Day with the little ones – they’ll love the fact that they get two Christmas Days!

Can a parent refuse Christmas contact?

If you and the other parent share parental responsibility for the children, then time with the children is not a “gift” to be given by the resident parent.  It is to be agreed between the parents.

Unfortunately, it does sometimes happen that one or other of the parents might take matters into their own hands and prevent the other parent from seeing the children at Christmas.  This might be for a variety of reasons, and there are, of course, cases when it is genuinely in the children’s best interests for this to happen – where there are safeguarding concerns for example.  But, often, it might be a culmination of other events – perhaps a series of relatively low-level disagreements which have escalated to the point when, out of frustration, the plug on Christmas is pulled.

If there is time, you could consider an urgent application to court, but you will need to think carefully about this and talk to a lawyer or mediator first.  Finding a way to improve communication between you will be absolutely key.

What’s best for the children?

Parents don’t always agree on what’s best for the children – if they did, they wouldn’t need lawyers or courts.  One parent can be absolutely convinced for, example, that the children would be better off being with them for the whole of Christmas week and with the other parent for the whole of the week after, whilst the other may think that breaking up the time a bit more would be better.  Each is a perfectly valid proposition, but what is best for the children?

Over the years, things will start to settle down.  Sharing their time between two loving homes will be entirely normal to the children – and in terms of presents and food, it definitely has its advantages!  But, before you get to that point, there may be many occasions when you don’t agree.  I always advise my clients that, if they get things right from the start, things are likely to get easier and better more quickly.

“Getting it right” means communicating.  Communicating means not just talking but listening; and not just listening but also listening with respect.  Try to put yourself in the shoes of the other parent; really try to understand them.  So often, if that parent feels heard, their resistance will start to soften.

Mediation can really help with child arrangements at Christmas

I believe that resistance is often borne out of fear.  A parent may fear the loss of the child’s affection; particularly where they have a young child, the fear may be around losing control or of losing their central place in the child’s world.  If that parent can be reassured that they are still in control (or at least joint control), that their views are held as valid and respected, they might become more able to listen to somebody else’s point of view.  Sometimes, you need to swallow hard and let things go.  You might need to give a bit now for longer term rewards.

Mediation can help you with communication and, if discussions start to deteriorate or you hit a brick wall, do think about asking a mediator to step in.  There are so many great mediators, some of whom are qualified to include the children in the discussions where that is appropriate; who are experienced and adept at ensuring that each parent has an opportunity to speak and be heard.

Do court orders cover Christmas child arrangements?

If mediation breaks down then you may have no option but to ask the court to step in but be aware that you won’t get near the court without first at least considering one of the non-court dispute resolution options, including mediation.  Indeed, even if you get past that hurdle, you might be waiting weeks, or even months, to get through the door of the court to see a judge.  Therefore, if you’ve left it too late, you won’t get a judicial decision on your arrangements for Christmas.

Emergency applications for child contact at Christmas

Private adjudication is available and can be obtained swiftly.  An expert family adjudicator (usually a barrister or former judge) can be appointed jointly by the parents to listen to the parents’ perspectives and decide for them.  Given the difficulties inherent in the public court system, this is a useful option, but of course it comes at a cost.  The decision of the adjudicator may not be binding, depending on what route you take – be guided on this by a lawyer.

At DMH Stallard, we provide expert legal advice in relation to child-related issues, including who the children should live with, decisions about their education, and who they spend their time with, including that precious Christmas time.  Bringing sensible, pragmatic advisers on board at an early stage can help to avoid expensive and stressful legal proceedings.  Our family solicitors are not only sensible and pragmatic, they also take a holistic view of our clients and their needs.

If you are struggling with these issues, please contact us for an informal chat.