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Legal How-To: Modifying Holiday Child-Custody Plans Out of Court

By Heather Kennedy-Bordeaux, Esq. | Last updated on

This post was modified on Nov. 15, 2022.

Co-parenting can be challenging at any time of year, and the holiday season can pose its own unique challenges. While holiday parenting-time (visitation) should be included in your divorce decree or parenting-plan, changes may be necessary during the holidays as circumstances change and children grow. How do you agree to modify your holiday parenting-time without asking a judge, while also not violating your existing court order?

Create a Modification Agreement

“The success and failure of an agreement is a result of how expectations, conditions, benefits, and consequences are understood and managed.” - David Benedict Zumbo.

If you can work together well and in the best interest of your child, consider negotiating with your child’s co-parent and memorializing any changes to holiday parenting-time in a written agreement. Before initiating the discussion with your child’s co-parent, consider any questions the other co-parent may have, and anticipate any objections that may arise.

  • How does the change benefit your child? Jot down a few notes about the reasons you believe the change would be in your child’s best interest. The focus should always be on your child, not your own needs or convenience.
  • How will the change affect your child’s routine? Consider any challenges your child may have experienced from previous changes to your parenting-time routine. The importance of a child’s routine may vary depending on the child’s age and personality. Prepare a plan for how to mitigate any challenges and get feedback from your child’s co-parent during negotiations.
  • Does the change disadvantage your child’s co-parent? Setting a respectful tone is important to a successful negotiation. Acknowledging that a change is not convenient or is problematic can go a long way toward establishing a respectful tone. Be prepared to discuss how you can alleviate any of your co-parent’s reasonable apprehensions.
  • Will your proposal have consequences on your child’s relationships? Think about your child’s relationships with extended family, such as grandparents, aunt and uncles, or cousins. If your child routinely sees extended family when with the other co-parent, consider additional changes to ensure minimal disruption of those relationships.
  • What am I willing to offer if my initial request is denied? Always enter negotiations with an understanding of what you are, and are not, willing to offer to get your desired result. Start with a “high ask” (ask for everything you want), but be ready to accept a few alternatives. For example, if you want your child for three extra overnights during Thanksgiving week, be ready to accept two overnights or even daytime visits instead. Keep in mind that you can decide your bottom line, but if you ultimately decline to compromise, you must follow your original decree or parenting-plan.

The agreement should include:

  • The place, time, and duration of parenting-time with each child’s co-parent. Be as specific as possible.
  • The name of the person who will pick up and drop off the children. Remember that this person could be someone other than a parent. If so, include the child’s relationship to this person.
  • The duration of the agreement. Is this a permanent change or temporary? If temporary, be specific about when the agreement begins and ends. If permanent, include a sentence indicating that the agreement will continue until modified by mutual agreement or the court.
  • The signatures of the co-parents and the date you signed it. Consider having signatures notarized, decreasing the chance of a dispute about whether someone actually signed it.

Keep an original signed copy of the agreement and any emails or written correspondence from the negotiation process so you can prove the terms of the agreement if the other co-parent has a change of heart.

Use Mediation if You Can’t Agree

Courts usually require co-parents to go through mediation before bringing any issues to court, so don’t expect to take your issue straight to court. Check the language in your court order or parenting-plan to see if mediation is required. Even when not required, a trained mediator can help you come to an agreement by improving communication and helping you and your co-parent avoid conflict.

Mediation is also generally faster and less expensive than taking a dispute to court. While mediation is more expensive than drafting your own agreement, there are many free or reduced-fee mediation services available across the country.

Whether you chose to negotiate your own agreement or enlist the help of a mediator, be aware that each process takes time. Try to anticipate any issues with your parenting-time well before the holiday season to ensure there is adequate time to complete the process, or you may have to follow your original decree or parenting-plan until the next holiday season.

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