In this episode, Attorney Brad Tengler and Geoff Carter discuss issues that arise with visitation for parents who are going through a divorce around the holiday season – and how to help ensure that you have the least amount of stress as possible during that time.
December 19, 2013
Brad: Good evening, folks. Welcome to Divorce Talk Radio. This is Attorney Brad Tengler, here in the studio with Geoff Carter. How’s it going, Geoff?
Geoff: It’s going good. How are you doing? Happy holidays.
Brad: Happy holidays to you. Merry Christmas. We’re only a couple . . . we’re only a week away.
Geoff: Wow. That’s fast.
Geoff: Time flies. 2014.
Brad: We should have probably have done this show in July, but no one would be listening to it. It would be applicable in July because the issue that we’re talking about this evening is how to plan for visitation or custody issues, any child-related issues, before the Christmas seasons so that you can actually enjoy your Christmas with your kids as someone who’s divorced.
Geoff: I know from experiencing it myself right now, because my girlfriend has 3 kids from different fathers, and to try to plan it all and to make everybody happy to make sure they get a Christmas Eve or . . . actually 2 of them are in school as well, so you got to plan around Christmas break and how many days each you get, too. It’s gets stressful trying to figure all that out.
Brad: It can be a complete and total nightmare.
Geoff: Man, it is.
Brad: A complete and total nightmare, especially if . . . obviously, it’s going to be . . . it can be a complete and total nightmare if you don’t get along with your ex. Even if you do get along with your ex, it can be a nightmare if you don’t have a clear plan and specifically clear court orders that lay out for you when the kids are going to be at what house at what time so that you don’t have to think about it.
Geoff: You can get all those things in writing?
Brad: Absolutely. People get court orders all the time that indicate when the child is going to be at what house on what time on Christmas Eve, on Christmas Day, Thanksgiving. Thanksgiving Eve is an important holiday, too. I guess New Year’s not so much, but it’s important. You don’t want people fighting about that stuff.
Geoff: How’s that work, though? Let’s say if you’re supposed to get . . . I get one kid this Thanksgiving and you get it next year or however you do it; what if you don’t comply with those court orders? Is that a fine?
Brad: If you disobey a court order, you can be held in contempt like any court order.
Geoff: And go to jail.
Brad: Possibly go to jail, get fined. There’s a number of different sanctions that can be leveled against you in a civil case. If you don’t comply with court orders, there is going to be a consequence or time might be taken away from your kids at a later date on important holidays. In extreme cases, it can be if you’re withholding your children from your ex, it can be grounds for modifying custody.
Geoff: Oh no. No good. What do you start out with?
Brad: My first rule of thumb, if I’m telling someone to plan for the Christmas holidays, is exactly that: Plan. Plan ahead. Nobody should be arguing about Christmas during Christmas, during December. Nobody. All of the arguments, however heated they’re going to be, need to happen in July. You need to go to a mediator, you need to sit down and talk. You need to work out what the schedule is going to be. Obviously, are there some exceptions to that? Sure. 2 out of every 100 clients that I have, or 5 out of every 100 clients that I have, can have a broad visitation schedule that doesn’t really get very particular and they work things out. Those are the exceptions. The general rule however is you’ve got to be prepared for Christmas so that you’re not fighting about visitation over the Christmastime. Work it out in July. Go to a mediator, get down who’s going to be transporting the kids when, where, what times; all those things so that you can enjoy your Christmas and Thanksgiving.
Geoff: That’s another thing I deal with because my girlfriend’s kids and the father’s of her children all live in Wisconsin, so it’s always we got to make sure we have enough gas, both ends obviously, and then a perfect meeting place. Actually, the other fathers also have kids with other people that they have custody with. Something that comes into play would be us being in the Midwest is weather, because we’ve been late a couple times and they get mad or a couple days have been switched off because of the weather. You have to also keep in mind that some of those things could alter your meeting times.
Brad: Of course. Weather, those unexpected things people . . . no court order can deal with that, really. If you have 2 feet of snow and you live 2 hours from each other, visitation might not happen. It’s just a reality of life. You might have in an order that a make-up visitation needs to happen, something like that. The first thing is plan, plan, plan ahead. Second, try to work things out. You can plan ahead in July. 2 reasons to plan ahead in July: Number 1, you’ve got to figure out whether you and your ex can agree about stuff, because if you don’t agree about stuff in August, you need to file a motion to get Christmas and Thanksgiving worked out. It takes awhile for motions to get heard. In fact in some cases, you might need a guardian ad litem involved; usually not for visitation issues, but you might.
If you need that, that’s going to be an expense, it’s going to take time. You need to get a hearing date. You don’t just file a motion, walk in a court, and the judge just listens to arguments the first time you walk in a court, and rules on what happens at Thanksgiving and Christmas. Try to work things out, try to do it in July. If you can’t, then know that early enough so you can file the proper motions so you can get in the court and have Christmas and Thanksgiving addressed.
Geoff: How does that figure out normally? Is that a luck-of-the-draw where the judge says, “You’re going to get your daughter this year on Christmas and next year it’s going to be vice versa,” or does he also look at the fact that not always the father, but a lot of times the father gets the child less because the mother or whoever has full custody? They look at that also and say, “He only sees them once every other weekend.” Do they look at that and say, “This year, you should have more days for Christmas Break”? How’s that . . . you see what I’m saying?
Brad: It’s not so much the luck of the draw. I would say the general rule is parents are to split major holidays: Christmas, Thanksgiving, Easter, the child’s birthday. Not Mother’s Day, not Father’s Day; dad should always get the kid on Father’s Day and mom should always get the kid on Mother’s Day.
Geoff: I agree
Brad: The general rule is split holidays. There’s minor holidays too that are important to people, like 4th of July, Labor Day, and Memorial Day. Not as important as Thanksgiving, Christmas, and Easter, but obviously, pretty important holidays for a lot of people.
Geoff: Of course. Like I said, it depends on the age you’re talking about, because if you’re talking about 5 and over, they’re going to school, so they have breaks in there. 2 out of the 3 that I deal with, they have breaks. The Christmas is 15 days you got to figure out, and you try to be fair. We work and they work, and you got . . . who’s going to watch the kids while you’re gone? All these things you have to look at ahead of time. That’s why I see what you’re saying about July or October at the latest, to try to figure stuff out with that.
Brad: Try to work things out so you know what you have to litigate and when you have to litigate it.
Geoff: What about asking the kids if they’re old enough? Do you think that should matter?
Brad: Sometimes it does. I’ve seen cases where a parent hasn’t seen their kid at Christmas ever, and then all of a sudden he wants to see his kid at Christmas. The kid’s 15 and the kid’s flipping out. It’s like, “I don’t want to be over at Dad’s house at Christmas. I’ve never been over at dad’s house at Christmas.” Is that going to impact a judge, if that information gets in front of a judge? Sure. It should impact the parents, though. Who’s doing those . . . who’s filing those motions? If a dad hasn’t seen his kid on Christmas for 10 years, and all of a sudden wants to see his kid on Christmas, or a mom for that matter, and the kid doesn’t want to, and the child’s 15 or 16 . . . I’m not talking an 8 or 9-year-old kid, but a kid who’s 15 or 16. If you’re a good parent, you’re going to take that into account. It doesn’t mean that he doesn’t love you; it means that this is what he’s used to. This is his routine. Why mess up a child’s holiday routine?
That’s just selfish, which really brings me to my third point about this stuff. Parents should not be selfish around the holiday season. It’s about the kids, and it’s not about you. While both parents should be able to see the kids on the holidays, they shouldn’t be selfish. Sometimes the selfishness goes along these lines: “I don’t want him, or her, to see the kid on Christmas, ever.” That’s just ridiculous. The general rule is 50/50. Dad should get little Johnny on Christmas Day Year 1, and Year 2, Mom should, then Year 3, dad, then Year 4, mom. It’s not going to be that mom always gets the kid on Christmas Day. That’s just unfair.
Geoff: What about . . . this might be a random question, but what about as in gifts, too? For people that do have kids that are 15 and 16, and you have [inaudible: 09:34] to pay for, a guitar, or certain expensive thing; can they write up something saying, “I’m going to be a little lenient on child support, a little bit less, because I know that you’re going to go in halves”? Can you write stuff up like that and say, “I know I normally pay this $500 a month, but can I reduce it a little bit this month and pay a little extra next month”?
Brad: No. If you mess . . . if a court order says you owe $500 that month for child support and it’s payable to the State Disbursement Unit here in Illinois, and the dad says, “No, I’m going to use $400 of that $500 to buy gifts.”
Geoff: Not happening.
Brad: No way.
Geoff: Not even if the other parent says it’s okay?
Brad: Sure. She, or he, can say, “Sure it’s okay,” but then it’s not paid to the State Disbursement Unit.
Geoff: I see.
Brad: You haven’t paid your child support, and they can come back at a later time and say you didn’t pay your child support.
Geoff: Start saving it way ahead of time.
Brad: Child support is child support. It is not for gifts; gifts are extra, Christmas gifts. That is not taken into account when it comes to determining child support. You can’t just modify a child support order by agreement of the parties, either verbally or in writing. You have to have a judge’s signature on that document so it becomes a court order. Ultimately, judges sua sponte, that means ‘of the court itself’, makes the determination of what child support should be and makes the determination of whether to modify child support. People cannot modify child support by agreement unless the judge also agrees and signs the court order.
Geoff: Right, makes sense. I learned a lot there.
Brad: What can I say, Geoff? I’m a wealth of knowledge.
Geoff: Yes you are, Brad. I need to learn more about this, that’s for sure, now that I’m involved with some kids and everything. It’s been an interesting little journey with somebody with kids, and I like it. It can be a headache sometimes with trying to make everybody happy. It’s real tough, especially with the delivery on time, because there’s things that are coming up. One of them has dance, another one is playing basketball, had volleyball, also is in band, too. Try to work around their schedules, it can get real stressful.
Brad: It sounds like you guys do a pretty good job of trying to work those things out. It has nothing to do with whether the parents are trying to do a good job or not trying. Obviously if they’re not trying to do a good job, it’s going to create all kinds of problems. It’s just tough. I don’t know how many kids do you and your girlfriend have?
Geoff: I don’t have any, but she has 3.
Brad: That’s a lot of kids to juggle during this time. A lot of children to juggle. Making sure that everyone is happy, it can be very, very stressful.
Geoff: Brad, I learned a lot about that. It’s going to help me out with the next holiday coming up, now that it’s almost Christmas now. It’s interesting.
Brad: Very good. It’s an important topic during this time of year, and hopefully people have a great holiday season with their kids and don’t have to worry about this stuff.
Geoff: If somebody would like to contact you about representation or a question, how do they get a hold of you in your law office?
Brad: Our office is located in downtown Rockford: 515 North Court Street. Our phone number is 815-997-5200.
Geoff: Thanks a lot. I learned a lot.
Brad: Thanks, Geoff.