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Arranging to spend Christmas with your children after a separation or divorce can become a point of contention with your former partner. To prevent conflict or isolation during the festive season there needs to be an agreement on when each partner can see the children.
Some parents will have considered occasions like Christmas, birthdays, and other holidays at the outset of their separation, possibly even having a formal child arrangement that has established each parent’s entitlements and responsibilities. Without this in place, your first Christmas apart may prove challenging.
Both parents have equal rights to see their children, but there is no law in place that guarantees either parent the right to ‘have their turn’ at Christmas. There is no automatic right for you to see the children on special occasions.
In most cases, the primary caregiver will agree that it is healthy for their children to see the other parent over Christmas, and this can be agreed without any legal processes. In the most contentious cases where parents cannot agree on when each of them should see the children, a court order may be required.
Unless the courts have decided to restrict your access to the children as a matter of welfare, your former partner has no right to prevent you from seeing them. However, equally you do not have the right to demand to take the children away from the other parent, or to visit their home without permission.
If your ex-partner is unfairly preventing you from seeing your children, you can apply for a court order to deal with the issues of contact. An arrangement without legal intervention is usually the best solution for both parents.
Many parents take their children on long-distance holidays over Christmas. The rules surrounding this are different depending on where they are going.
If the family lives in England or Wales and the children are not being taken outside England and Wales, this is unrestricted. Even if the holiday was 200 miles away at the other end of the country, the only way the law would allow you to stop this is if there was likely to be harm or danger to the children.
If your ex-partner attempts to take the child/children abroad, which for these purposes includes Scotland, Northern Ireland, the Isle of Man and the Channel Islands, they are required to obtain permission from you, provided you are legally recognised as having parental responsibility.
However, if a child arrangement order states that your former partner is the parent whom the children must live with, they will have the right to take the children abroad for up to 28 days without permission from anyone else who has parental responsibility.
In the interest of preventing conflict and inconvenience, it is good etiquette and recommended that parents always communicate with their ex-partners before taking the children on holiday.
Christmas arrangements vary from person to person depending on individual circumstances, however, common scenarios agreed by separated parents include:
There are plenty of reasons why you might wish to have the children all to yourself at Christmas, but not all reasons would be legally justified if the other parent tried to force you to allow access.
The courts prioritise the safety and wellbeing of the children above any other factors, and would accept the following reasons for denying the other parent access to the children:
The courts would not agree to stopping child contact for any of these reasons:
Professional mediation should be sought before trying legal proceedings, and the family courts will require you to have attended a Mediation Information and Assessment Meeting before proceeding to court (exemptions apply).
The court order application involves the C100 form and a £232 fee. You will then be contacted by the Children and Family Court Advisory and Support Service (Cafcass) before the first hearing.
At the first hearing, the Court will consider the information before it, together with all information from Cafcass and consider whether it is in the child or children’s best interests to allow contact or allow interim contact whilst the issues are looked at. Further hearings may take place depending on the issues/concerns raised. It is highly recommended that early advice is sought from the outset and particularly at the first hearing to ensure that all issues/concerns are taken into account, as it is at the first hearing that directions are given by the Court as to how the case will be managed.
It is highly recommended that you have the support of a solicitor from the outset of your application through to the end of the court hearings.
Many divorced couples who are on good terms are able to enjoy spending Christmas Day at each other’s homes or at a restaurant, even with new partners in tow. There is also an opportunity to use the occasion to demonstrate trustworthiness and best wishes towards one another.
If the relationship is on more rocky ground and the parents are not able to enjoy each other’s company, an arrangement like this would likely be ill-advised.
If you do opt to spend Christmas together, here are some tips to keep the occasion merry:
Our Family & Matrimonial team is highly experienced in helping separated parents make arrangements for their children. For assistance with all aspects of family life before and after divorce, call us on 0121 389 4546 or fill in the form below.
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