Picture the scene; it’s Christmas eve and the family law solicitor is about to log off and head home for the festive break. The phone rings and it’s a parent desperately wanting Christmas contact with their child, but the other parent has refused.
It happens without fail every year. But the reality is even if they had come to us in October or November, it would have been too late to apply for a Judge to rule on this particular issue. Whilst solicitors can assist with the matter of contact over the festive period, you would need more than a Christmas miracle to find a vacancy in the Court listings at such a late stage.
There is already considerable pressure to have the “perfect” Christmas for children. We are surrounded by retail adverts of happy families in matching Christmas pyjama’s, snuggled up by the fire watching Christmas films, exchanging presents and drinking hot chocolate. For separated parents however, one of the biggest challenges is spending Christmas without their children and missing out on those magic moments.
Many dread the prospect of alternating Christmas or sharing this time with their ex. But unless you are both prepared to spend Christmas together “for the sake of the kids” there will need to be serious consideration and compromise about Christmas contact.
The guiding principle of the court is that children’s well-being always takes priority. Contrary to common belief, neither parent has a greater right to spend Christmas with their child. The starting point should always be to try and agree matters with the other parent, well in advance of Christmas itself.
There is no blueprint or set rules on how Christmas should be divided. There are various different options available and it is not a one-size fits all approach. Options you can consider are;
- Split Christmas in half.
One common arrangement is for the children to spend Christmas eve and Christmas morning with one parent, before swapping to spend the rest of Christmas day and Boxing day with the other parent.
This arrangement allows both parents to spend time with the children on Christmas day itself. It does not have to be a fixed pattern, the arrangement could alternate each year so both parents have a Christmas morning with the children (arguably the best part) every other year.
This option should only really be considered if the parents live in fairly close proximity (no less than 30 minutes drive ideally). The Court’s are often reluctant to order extensive travel for the children on Christmas day itself. Remembering that the priority is always the children, not the parents; if half the day is going to be spent in the car it is not going to be a very merry Christmas for them.
- Alternate Christmas and New Year
Some parents chose to split the holiday’s in half, with one parent having the first half (to include Christmas) and the other having the second half (to include New Year’s Eve).
Often with this option, parents rotate the arrangement each year. So if you have the children for Christmas this year, they will be with you for New Years the following year.
This arrangement works well when the two parents do not live in close travelling distance, as it reduces the number of handovers between the parents and ensures equal time with both parents. Even if you do not live far apart, it helps avoid potentially exposing the children to tension or awkwardness between separated parents on Christmas day itself.
- Two Christmases
Your children might wish it could be Christmas every day and although that is not practical, they could enjoy two Christmases with each of their respective parents. This arrangement would have the children spending Christmas day with one parent and with the other on a designated date close to the big day (such as Boxing day).
Unless there is a reason why one parent cannot have the children on Christmas day (perhaps they work in healthcare or hospitality), then this option should ideally be alternated yearly on rotation. To ensure that each parent is able to have “the real Christmas” every other year.
- Continue with the usual arrangements
If there is a working and regular term-time arrangement in place, then some parents may find it easier to allow contact to continue as usual and simply say that Christmas shall be spent with whoever the children are due to be with under the normal term-time arrangement.
This option certainly avoids conflict and confusion, but if the children are usually with you alternate weekends only, then depending on how Christmas falls each year, you could potentially go without seeing them over the festive period. We would only recommend this option if you have regular contact each week or a shared care arrangement.
It may be appropriate for the parent with whom the children are with on Christmas, to facilitate telephone or video contact with the other parent, so the children get to at least speak to both parents on that day.
- Spend Christmas with your Ex
And finally, there is always the option of coming together in the name of Christmas for the sake of the children. It does avoid splitting the day between two households whist still ensuring the children are able to spend this special day with both their parents.
This option should only be considered if you are on good terms with your ex. The priority must be the children’s welfare and if you cannot be amicable with your ex on Christmas day, then this is not a suitable arrangement for you. It is worth pointing out that a Court would not order parents to spend Christmas day together, due to the risk of children being exposed to unnecessary conflict. So this sort of arrangement can only happen by agreement.
If you cannot agree arrangements between yourselves, then you could try mediation or solicitor negotiations. Once an agreement has been reached, you may want to instruct a solicitor to draw up a parenting plan to record and preserve the arrangement in writing.
If you and your ex are at a stalemate and discussions have broken down, then you can make an application to the Family Court for a Specific Issue Order, to deal with the sole issue of Christmas contact, or as part of a wider Child Arrangements Order application (to deal with all contact arrangements including Christmas).
However, if you are considering the Court route then you should make the application well in advance of Christmas. It is unlikely you will obtain a Court hearing date at short notice as a Judge will not consider a Christmas contact application as “urgent”. If you leave it until the 11th hour, you could very well be waiting until Easter for your hearing.
Heather Reilly 4th December 2024