HALLOWEEN – CHILD CUSTODY AND HOW TO SHARE HOLIDAYS AFTER DIVORCE!

By Dugan P. Kelley

Candy, pop, swollen bellies, stained teeth, and blisters on the feet are what many parents associate with Halloween.  For most kids, Halloween is pure joy and a time to engage in playful fantasy and eat things their parents would never allow every day!  However, for divorced parents that share holidays and child custody, Halloween can be a true source of pain, angst, and conflict of communications with their ex-spouse.  If you handled your own divorce without lawyers, perhaps Halloween was an afterthought and now your ex-spouse is playing hardball about getting you any time to trick-or-treat with your kiddos.  If you have to share holidays after divorce, it takes patience and discipline to do it seamlessly.  Below are some key points and tips about how to ensure that your future Halloweens are better.

Is Halloween In Your Current Child Custody Order?

Holiday schedules and corresponding visitation schedules are set forth in your agreed upon child custody Court order with your ex-spouse.  Sometimes the child custody order identifies dates and holidays each spouse to have the children.  In Texas, the default orders are standard child custody possession or expanded standard possession orders (which has alternative beginning and ending times on visitation schedules for the possessory parent).  As you probably already know, typically one parent is the “primary” custodian of the children.  That primary parent usually has the exclusive right to designate the primary residence of the children and the non-primary parent (possessory parent) has a visitation schedule.  Holiday visitation is set forth in the Texas Family Code and divides up the holidays according to even years and odd years.  So, in child custody, a parent will not likely have all the major holidays.  Hence, you must share holidays after divorce pursuant to these arrangements.

Texas Family Code Section 153.314 specifically sets out the language for most standard court orders and is follows:

Sec. 153.314.  HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART.  The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1)  the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2)  the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

(3)  the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

(4)  the parent not otherwise entitled under this standard possession order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

(5)  if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard possession order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and

(6)  if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard possession order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

Important to remember if you have to share holidays after divorce – Halloween is not included in the standard holiday list by the Texas Family Courts in Denton, Collin, Dallas, Tarrant or other Texas counties.  This means that you will have to: 1) Either negotiated and included Halloween for your specific order; 2) Negotiate after the fact; or 3) Try to get a modification included if this is significant to you .  Remember, the Texas Family Code allows “[t]he parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.” §153.311.  This means that you can negotiate and include Halloween into your order and the Court will include it in your final order!  So, please make sure to look at this prior to signing and/or agreeing to any final order concerning your right to share holidays after divorce.

How To Include Halloween After Your Child Custody Order Was Entered:

In the event that you have found out that you did not think about Halloween in your current order, you still have options as set forth below.

One.  Clearly and peacefully negotiate with your ex-spouse: Although a modification is not “enforceable,” unless the Court officially modifies your current order, many parties are able to negotiate with their ex-spouse on some amount of visitation for Halloween.  This allows them to share holidays after divorce in a flexible way.  However, this may require you to exercise restraint in your speech and in engage in peaceful diplomacy with your ex-spouse.  For example, if you know that your ex-spouse really would like one of your visitation days before or after one of the holidays in your order, you may be able to negotiate some amount of time for Halloween in exchange for something your ex-spouse would like.  Informal agreements should be put in writing (e.g. e-mails, our family wizard, texts etc…) so that in the event a Court ever asks why you kept the children during a period of time not set forth in the order, you can explain your agreement;

Two.  Think about ways you can create incentive for your ex-spouse to allow Halloween visitation or generally share holidays after divorce: It is not uncommon for parties to negotiate a particular time during the Halloween visitation so that both parties have advantage. Options include: 1) specific blocks of time like 4:00 p.m. – 6:00 p.m. for one parent and 6:00 p.m. – 8:00 p.m. for another parent; 2) agree to pick-up the children at a location that provides greater ease of effort for one parent – drive to them and drop them off to make it easy; or 3) even some parents (depending on the relationship) have agreed to allow both parents to share Halloween and walk with each other and the kids during the trick-or-treating.

Three.  Move to modify your existing order: You always have the option to seek Court assistance to modify your existing order. However, be careful.  Going back to Court should really be a last resort because it requires you to sue your ex-spouse to have the Court change the current order.  Bringing a legal action is not the best way to share holidays after divorce.  You will have to carry the burden of proof and demonstrate that a change is necessary substantial and that changing the order is in your child(ren)’s best interests.  This is not a slam dunk.  So, exhaust all efforts to peacefully negotiate with your ex-spouse prior to going to Court.

Tips That Will Help Further Child Custody Negotiations With Ex-Spouse:

You likely have been taught the “Golden Rule.”  The Golden Rule applies to sharing Holidays after divorce.  This is a perfect resource for any parent that is struggling with how to negotiate and/or speak to their ex-spouse about something like getting some visitation time on Halloween.  The Golden Rule is set forth in Matthew 7:12, which provides “So whatever you wish that others would do to you, do also to them…”  Put that into practice in your child custody relationship with your ex-spouse.  No doubt, your ex-spouse has asked you to be flexible at times during child custody and visitation schedules.  Perhaps you have even said “no” on many occasions.  Instead, of saying “no,” say “yes” the next time that your ex-spouse asks for something.  Yes, this may require some sacrifice on your part.  You may even believe or think that your flexibility is not being reciprocated as much or at all.  Do it anyway!

The Golden Rule in practical application is powerful and it has the ability to radically change your relationship with your ex-spouse with child custody.  Don’t just use it for Halloween negotiations.  Use it for any communication with your ex-spouse, especially child custody issues!

Mother Theresa famously applied the Golden Rule in quoting the following sage advice “People are often unreasonable, irrational, and self-centered.  FORGIVE THEM ANYWAY.  If you are kind, people may accuse you of selfish, ulterior motives.  BE KIND ANYWAY.  If you are successful, you will win some unfaithful friends and some genuine enemies.  SUCCEED ANYWAY.  If you are honest and sincere people may deceive you.  BE HONEST AND SINCERE ANYWAY.  What you spend years creating, others could destroy overnight.  CREATE ANYWAY.  If you find serenity and happiness, some may be jealous.  BE HAPPY ANYWAY.  The good you do today, will often be forgotten.  DO GOOD ANYWAY.  Give the best you have, and it will never be enough.  GIVE YOUR BEST ANYWAY.  In the final analysis, it is between you and GOD.  It was never between you and them anyway.”

Applying the Golden Rule in your communications and relationships with your ex-spouse is the right thing to do.

Additional reading from Kelley Clarke PC Family Law attorneys:

Read more about how to deal with your ex-spouse and children HERE.

Read more about Child Custody in Denton County HERE.

Read more about general Family law in Denton County HERE.

Read about co-parenting in Divorce HERE.

Read about Child Custody Jurisdiction HERE.

Read about Five things to do If Your Spouse Wants a Divorce HERE.