Twas the Night Before…Christmas, Hanukkah, Kwanzaa, or Boxing Day in Canada
You’ve been planning this day for a while – your family is getting together, presents are wrapped, and you are ready to have a nice holiday with the kids. You are just getting ready to head out the door to pick up the kids when you get the call from your ex, “We can’t make it because *insert excuse here* (e.g., the weather is bad, the weather is going to be bad, the roads are icy, the roads are going to be icy, the car won’t start, the kids are sick, etc.)” If the ex is feeling particularly direct, they might just tell you “We have other plans.” If you are like most people, your first reaction is livid anger. Now what?
Is there anything you can do about it?
The holiday season is stressful for most families. We put a lot of pressure on ourselves to have the perfect, Hallmark Movie event. The reality is that holidays often involve a good deal of time, energy, and money. With multiple people and multiple events involved, we have to juggle the schedules of many different people. For the families that are separated and have children, holiday stress can escalate even higher.
What Can Be Done?
In the short term, unfortunately, there aren’t many good options. The police are not likely to get involved in a visitation dispute. Looking for recourse through the Court will likely take weeks if not months. Even if you have access to a Parenting Coordinator or Mediator, a session with the other parent will likely not be scheduled until after they decide to deliver the kids back to you anyway. You could threaten the other parent, but that’s not likely to succeed and will only make the situation worse. You could withhold the children the next time you have them, but then you may be violating an order and that will probably backfire as well. You could offer to do all the transportation for the children yourself or cut a deal for makeup visitation time, but that may set a precedent that you don’t want to set. For many of us, there is generally no good way to get the kids for the holiday you are about to miss. The trick is to anticipate when or how holiday visitation violations may happen before they occur.
In the long term, good options are available, depending on the nature of your situation.
First, you need to obtain a visitation order if there is not one in place. You should consider initiating an action to establish a visitation schedule if you are not divorced or were never married to your former partner, and there is no holiday visitation schedule in place. Without an order for a visitation schedule in place, no violation of any order has occurred if the children are kept from you. Accordingly you really don’t have much legal leverage. However options may become available if you do have a visitation order.
Second, if you have a visitation order, but it’s vague, then you need to clarify your order. You should consider filing an action to modify visitation if your visitation schedule is not specific about exchange times, locations, or holidays. Sometimes there are very general provisions in decrees concerning visitation such as “parties agree to alternate holidays” or “parties agree to share transportation equally.” Without specific visitation days, start times, stop times and transportation responsibilities, it’s very easy for one parent to undermine the other parent’s visitation time without technically violating any specific provisions of an order.
Third, you can try to enforce the order through a Contempt of Court action if you have a specific visitation order that has been violated. A contempt action will take time and money, but it may be worth it to draw a line with a co-parent who is intentionally abusing the provisions of a court order. Keep in mind that contempt is a quasi-criminal action and punishable by up to 30 days in jail in Iowa. As a result, you will have to show your ex’s actions were a willful violation of a court order, and prove so beyond a reasonable doubt. If you can meet these standards, you can also ask for attorney fees. However attorney fees are never assured. Make up visitation time is often requested in contempt actions. Contempt is not a good remedy in every instance, but it can be a useful tool in extreme circumstances.
Fourth, you can also try to modify your existing order if you have a specific visitation order that has been violated repeatedly. You can try a modification in addition to or instead of a contempt action. With multiple violations of a visitation order, you may be eligible to modify both visitation and primary physical care. The standard to change a visitation schedule is much lower than the standard to change which parent has primary physical care of the children, however both may be options, based on the facts of your case. Often as kids get older, their schedules change when they begin school full time or begin extracurricular activities. Schedules which may have been appropriate for younger children are no longer workable, and it may be appropriate to ask the court to modify visitation. Sometimes parties relocate for work or family and the distance interferes with visitation. Changing which parent has primary care of the child may also be appropriate in cases where there has been a substantial change in circumstances for the child, or if one parent has repeatedly interfered with the child’s relationship with the opposite parent.
Visitation often causes problems for many split-household families, particularly during the holidays. When visitation is withheld, the best advice is to try to take the high road. Consider that you may find yourself in a similar situation down the road due to difficult weather or travel conditions. Try to be reasonable with your ex and follow the “spirit” of your existing visitation decree. Document the incident, ask for make-up time if you want it, and contact an experienced family law and child custody attorney to discuss your options going forward.
If you would like to know more about Child Visitation and Holiday Visitation, please contact us at 515-661-4588 or submit a consultation request to get started.
Types of Spousal Support in Iowa
There are three types of spousal support in Iowa which may be awarded:
Traditional support payments are typically longer term, and can be awarded where there is a longer marriage and one spouse cannot meet the standard of living enjoyed during the marriage. This may be awarded in cases where one spouse is the primary earner, and the other maintained the home, cared for children or otherwise supported the other in their profession. A traditional support award generally continues until the receiving spouse remarries, but does not automatically terminate upon such event.
Rehabilitative support awards are common in cases where one spouse needs to go through retraining, re-education, or a job search to become economically independent. Spousal support payments are temporary, with the intent of creating an opportunity for the receiving spouse to become self-supporting.
Reimbursement support is designed for marriages that involved one spouse making educational or career sacrifices to enhance the earning capacity of the other spouse. For example, a divorce after an advanced decree is obtained by one spouse, with that spouse being on the verge of a significant increase in earnings, and with modest assets and incomes available at the time of divorce. Reimbursement support is an award concerned with fairness to a spouse who has made substantial sacrifices for the benefit of the other spouse.
All three types of support will involve analysis of the factors outlined above, and all three types of support may be awarded in any given case. Alimony awards may be modifiable and will create tax consequences to both parties.
As with all aspects of your divorce, the award of spousal support will depend on a careful analysis of the facts in your case. Courts are very practical when it comes to the financial elements of divorce, and will consider the sum-total of your economic circumstances in determining an appropriate alimony award. At Starcevic Law we know how to evaluate the potential for spousal support in your divorce, and which factors may apply in your situation.
If you are contemplating divorce and would like to discuss the financial effects of dissolving your marriage, including spousal support or alimony, then we invite you to contact Starcevic Law for a consultation.