Who has the children for Christmas can be a big argument among divorced parents. Photo / 123rf

Welcome to Sisters In Law, a weekly column on news.com.au that solves all of your legal issues. This week our lawyers and real sisters, Alison and Jillian Barrett at Maurice Blackburn, are helping someone out with someone making custody agreements for Christmas.

QUESTION:

My ex-wife and I have been separated for five years and divorced for almost four years. We have two beautiful children together, six and seven. When we parted, our divorce became bitter, bitter, and angry. We had to go to lawyers to get custody of our children because it was so far that we couldn’t speak without yelling at each other.

Eventually we decided my ex-wife would have them Monday through Thursday and I would take them Thursday through Sunday which worked well.

This year, Christmas Day is on a Friday so I’ve prepared to have the kids. I have a new wife and child and we were very excited to have them together. But then my ex-wife wrote to me that she would have our children because she lives alone and I have “a new family” to spend with.

She’s totally against the terms of our custody agreement and I’m angry. She has already told the children that they will spend it with her as if the case was closed. I really don’t want a Christmas Eve showdown with her when I pick her up. What are my rights – Kara, NSW

Alternative arrangements can usually be made for special occasions like Christmas. Photo / 123rf

REPLY:

Christmas is supposed to be a time of joy, but unfortunately for some families it can be a very difficult and challenging time of the year.

We will assume that since you were advised by lawyers at the time of your divorce, you either have an agreed “parenting plan” or “parenting orders” issued by the family court.

They refer to a custody agreement, which is terminology commonly used to describe a parenting plan under the law.

It is this plan or all parenting assignments that determine your current parental responsibilities, that is, the care arrangements Monday through Thursday and Thursday through Sunday.

The purpose of both parenting plans and parenting assignments is to establish the care arrangements for your children. However, only educational mandates are legally enforceable.

It is common for plans or arrangements to outline alternative arrangements to the usual care arrangements for special occasions or celebrations such as Christmas, birthdays, and Mother’s Day.

Usually, the schedule or order allows each parent to spend time with the children for the special event.

You should carefully review your plan or order to see if this has been considered.

Provided there are no different arrangements for Christmas, you have the right to care for your children according to normal arrangements.

The position of your ex-wife that she is entitled to the children on Christmas Day because she lives alone and you have a new family is not taken into account in this situation.

According to the law, one parent is no more important than the other.

The overriding factor is that the arrangements should be in the best interests of the children.

It sounds like you and your ex-wife have already tried to resolve the problem without the court being involved. Obviously, this is the cheapest and fastest way to resolve a dispute.

Who has the children for Christmas can be a big argument among divorced parents. Photo / 123rf

Since it is your ex-wife who wants to change the arrangements, she is the party that would need to take further steps if she wants the change to be made.

Assuming you have a parenting plan and no court orders, she would need to file a petition with the court.

Even if a parenting plan cannot be enforced, it may be relevant to the court’s decision as evidence of the existing agreements.

Again, when issuing orders, the court will take into account what best serves the interests of the child.

As you know, in some troubling situations one parent has kept the children at odds with a parenting plan or assignments.

Only parent orders create legal obligations. For example, if one parent does not follow instructions and the children remain in their care beyond the specified days, the other parent can return to court to enforce the order.

In this situation, the court can issue various orders and penalties to avoid future problems.

We hope the problem will resolve itself before Christmas.

This legal information is of a general nature and should not be viewed as specific legal advice or relied on as reliable. Individuals in need of specific legal advice should consult an attorney.