Explanation of Christmas visitation in the court order

[pickupsticks]

My court order reads the following:
CHRISTMAS. The FATHER shall have the right to have the minor CHILD on even-numbered years from 6:00 p.m. on December 18th until 1:00 p.m. on December 26th, and on odd-numbered years from 1:00 p.m. on December 26th until 6:00 p.m. on January 2nd. The MOTHER shall be entitled to the child on the alternate years notwithstanding any other CUSTODY rights set forth herein.

My ex wrote me a letter stating that this year Christmas 2004 is her "alternating year" to have our child. That's not the way I understand it but I do not want to be in contempt.

Question: After reading the court order, who is to have the child from Dec. 18th- Dec. 26 in the year 2004?

[socrateaser]

>Question: After reading the court order, who is to have the
>child from Dec. 18th- Dec. 26 in the year 2004?

The Father.

Send the following to your ex:

Dear EXSNAME,

I think you may be misinterpreting the custody orders. It appears to me, that the "notwithstanding" text refers to "other" custody orders, NOT contained in this paragraph describing Christmas custody -- it is designed to ensure that no other part of our custody orders interferes with your exercise of Christmas custody, during the holiday periods when I am not entited to Christmas custody (such as weekend visitation, birthdays, etc.).

As this is an even-numbered year, I get the kids from 12/18-12/26. If you still disagree with my interpretation, I suggest that we select a family law attorney at random from the phone book and each pay one half of his/her hourly rate to interpret the order for us, and we will both agree to accept that interpretation as final.

Please let me know how you would like to proceed. If we cannot reach a settlement of this matter by 12/01/04, I will be forced to obtain a ruling from a judge, which will almost certainly cost us both an unreasonably large and unnecessary expense.

Yours Truly,

YOURNAME

[pickupsticks]

I guess I should point out one other thing. Ex offered to give me her week of Christmas break last week in addition to my week because she wanted MY Thanksgiving.  That I didn't see a problem with. She claims that because I had her for Christmas last year, this would be the "ALTERNATING" year for her to have the 18th-26th. That was a bargain that she wanted last year. I didn't agree to that knowing that I would lose her for Christmas this year!!

[DecentDad]

Hi,

It's clear from your orders that YOU will spend Dec 18 to Dec 26 with child in 2004.  It's also clear that YOU will spend Dec 26 yo Jan 2 with your child in 2005.

It would be a reasonable interpretation that your ex would have the opposite schedule in 2004 and 2005, but it's not specifically outlined that way.

It doesn't matter what arrangements there were in the past.  Unless you made an agreement to change these court orders, you're within your rights to just stick to court orders.

Given that your ex seemingly likes to cause problems, I'd suggest that if you make any modifications in the schedule, you may just want to have both parents sign it as a stipulation and file it with the court.

Else, nothing would stop your ex from taking your Thanksgiving and telling you in December that she changed her mind and will be following the court orders for X-Mas this year.

I speak from my own experience-- my ex has screwed me a number of times on such "trades", so now I merely advise her that we need stipulated orders on any special arrangements she requests that rely on me trusting her.  She has yet to agree to that.

On the other hand, if I get my part of the "trade" first, I'm comfortable with that, and I follow through with it.

You can go the route that Soc suggested, or you can merely advise your ex in writing that if your kid isn't available for your pick-up on December 18, via your correspondence you're providing notice that you'll seek Ex Parte orders on December 19 to pick up your child and will also subsequently file for contempt.  That route will save you money prior to December 18 (i.e., ignore all further discussion), and you just have to be prepared to follow through.

BTW, if your ex has not been personally served with the orders (i.e., by a process server, not by mail), now may be a good time to do it.  For contempt, you'll need to demonstrate that she was aware of the orders that Father is with child during X-mas 2004.

Then, just wait to see if your ex is willing to risk her kooky interpretation of the orders.  Likely not.

DD

[pickupsticks]

Thank you for your response. You sound very knowledgeable. Please forgive me, I am new at this and do not even know what EX PARTE orders are? I am most certainly prepared to drive the 12 hours to pick up my child. NO PROBLEM.If I do  that you are saying that I do not need to serve her with papers? Won't she always say that she simply doesn't see it that way. She has a lawyer. Can she choose to not call him or something.
sorry....what does BTW mean? :)

[DecentDad]

Hi,

I'm only as knowledgeable as my experience.  There's plenty that I don't know, as Soc could attest.  :)

BTW = "By the way"

Ex Parte is basically an "emergency" hearing before the court to seek relief that can't wait for the normal docket scheduling.  In California, you need to give at least a prior day's notice to opposing side when you go Ex Parte.  You'll contact the court clerk to go Ex Parte.  You need to find out the court rules in your area (i.e., in the court that issued the orders).

If you go Ex Parte on what the court doesn't see as an emergency, you can piss off the judge.  But in what I've observed, there are always plenty of Ex Parte hearings around the holidays (e.g., I had to go Ex Parte last year to get the court's permission to take my daughter out of state for the holidays because my ex refused to agree, and judge took my ex's attorney into chambers and -- according to my attorney -- told opposing counsel that it was "BS" that I had to go to this length).

With regard to your court orders, it doesn't matter that you don't have an attorney and she does.  The court orders you posted are very clear that you'll be spending this X-mas with your child.  Sure, she can call him, but it's not going to change the court orders.  CC the attorney on your letter to your ex.

You still need to have your ex personally served with your court orders to prove that she is aware of them.  Sheriff departments can usually do this for twenty or thirty bucks.  It just means that a process server handed the court orders to your ex.

If you end up in court, that's when you'll be at a disadvantage because her attorney will know what's going on, and you won't.

All of this said, I'm not an attorney.  I'm a layperson giving some advice based upon my own experiences in dealing with an unreasonable co-parent every holiday season.

DD

[MixedBag]

I agree with DD and Soc.

Last year, she traded for Thanksgiving.

The order clearly says it's your Christmas.

And DD gives great advice!

[jilly]

Maybe I've missed something or not understanding (wouldn't be the first time!) but, was the offer made last week or last year?  If it was last year that she made the offer of giving her week in addition to you having your regular week so she could have child for Thanksgiving and you agreed to the change I would have to say that your ex (in all fairness) should have the child for Christmas this year. I know...the ex doesn't play fair so why should you...but why make more problems than you need? Plus, you're not stooping to her level.  Sometimes you need to pick your battles.  I say this because (if) you agreed to deviate from the original order to accomodate your ex (plus it gave you an extra week with your child) then let your ex know that you're agreeing to her having child for your week at Christmas this year but you want a make-up week. Next year stick to the schedule in your court order and don't agree to any deviations unless it's for a special occassion.
If none of this applies then just ignore what I said and stick to the order! LOL

[pickupsticks]

It was last year that she swapped weeks with me. I did not request it. She wanted MY thanksgiving and exchanged it for her week at Christmas which happened to be Christmas Eve week.  I AGREED to a swap. This year she simply is TELLING me that I Have to give up my child for my christmas because I had her last year. Next year the court order is that I will not get her so I will miss two years of Christmas. That's why I just want to make it easy and stick to our agreement .  Last summer she only wanted to give me two weeks of my eight weeks of summer because my daughter needed to bond with her new baby. My daughter also told me that ex is flying to California the week after Christmas when all of her 4 children are with their three fathers. How do I  know that this entire plead for christmas really doesn't have something to do with her vacation trip for HERSELF to California?