In family law, there is no stipulation that says that one particular parent has priority over the other to see their child on Christmas day. Instead, the law is clear that where there is no dispute over contact arrangements, a child has a right to see both parents on these special days. Every family’s arrangements will be different and there is no right or wrong answer. The priority for each family is to ensure that children get the opportunity to spend quality time with both parents over these festive periods/religious holidays.
How parental rights are decided during divorce.
In many instances, parents are able to draw up “agreed principles” which each parent will adhere to when making contact schedules for the year so that it is clear from the outset how the festive period/religious holidays will be divided between them. This agreement can either be formalised into a court order or simply a document signed by the parents as something which they will adhere to. For example, it might be decided that principal holidays are alternated each year between the parents or that the child spends Christmas eve and the morning of Christmas Day with one parent and then spends the afternoon of Christmas Day until the end of Boxing Day with the other. There also may be circumstances where each parent is of a different faith and so the child spends each parent’s religious holidays with that parent. Provided that the parents agree, there is no need to involve the courts.
Parental responsibility is not extinguished by virtue of going through a divorce / having divorced. If both parents have parental responsibility but are unable to agree arrangements around Christmas, Diwali or Chanukkah for example, then it will be necessary to make an application to the Court to ask for a determination on how the holidays should be divided. The court will impose a decision by way of a Child Arrangements Order.
What is parental responsibility?
Parental responsibility is defined as ‘all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and their property’.
This essentially means that if a parent has parental responsibility, they are recognised in the eyes of the law as having all the legal powers to make appropriate decisions in relation to the upbringing of the child.
Mothers automatically have parental responsibility by virtue of giving birth to their children. Fathers who are married to the mother of their child at the time of their birth also automatically have parental responsibility. However, if the parents were not married at the time that the child was born, the father will have parental responsibility if he is named as the father on the birth certificate or if he has obtained a parental responsibility order. It is to be noted that parental responsibility comes to an end when the relevant child reaches the age of 18 or earlier if a court order is made.
What is a child arrangements order and how can it help resolve or prevent conflict between parents?
A Child Arrangements Order is an order which sets out with whom a child is to live, spend time or otherwise have contact with and when. Each Order is decided on the facts of each case and with the child’s best interests as the court’s principal consideration.
The Order can be as wide or as narrow as circumstances dictate. If there is a high levels of conflict between the parents then it may be necessary for the order to be detailed and to be very prescriptive to avoid areas for future dispute. The court can prescribe arrangements for both direct face to face contact and also for indirect contact, for example arranging times for the children to speak to the other parent by telephone.
How do I obtain a children arrangements order?
In order to obtain a child arrangements order an application must be made to the Family Court nearest to where the child lives. The Court will then set various deadlines for next steps, for example setting out that both parents must file a witness statement setting out their respective cases on how the child should divide their time between their parents and why.
The Court will consider the factors contained within the ‘welfare checklist’ under section 1(3) of the Children Act 1989 during the decision making process and the focus will be upon finding a solution that is in the best interests of the child. Whilst undertaking this task, the Court will likely consider, amongst other things:
- What the arrangements were during the marriage on these religious festivals – was it usual for extended family to be present for these festivals? Were celebrations alternated between each side of the family?
- The distance between the parent’s respective houses – is it reasonable to make the child spend two hours in the car on Christmas day being driven from one parents’ house to the others?
- The ascertainable wishes and feelings of the child – if the child is of an age where he or she has their own views then these will be a consideration. The older the child, the more weight the Court will tend to place on their wishes and feelings.
Advice on how to have an amicable discussion with your ex spouse/partner regarding the arrangements
Divorce is never easy. However, if the parents are in a position where they can discuss arrangements amicably then reaching a consensus on the division of the child’s time over the holidays can be achieved. The parents may conclude that holidays such as Diwali are spent with one parent one year and with the other parent the following year on an alternating basis.
It is always helpful to record arrangements in writing so that there is no confusion further down the line. There are also a number of tools available to parents to help them deal with such arrangements, for example, Our Family Wizard is a parenting app which can be used to input how a child’s time is going to be divided. Both parents can then see clearly where the child will be at any given time.
It is important to remember that the child is the most important consideration and the arrangements should reflect this. Christmas can be a stressful time and it is best to have arrangements in place well ahead of the festive period so everybody can enjoy the celebrations!
This article is a part of our Essential Guide to Divorce & Separation guide. For more insights and guidance on handling this difficult time click here, or contact a member of our Family Team.
