HOLIDAY VISITATIONS

During a recent airing of “San Diego Living”, Board-Certified Family Law Specialist attorney Garrison “Bud” Klueck appeared to talk about the legal aspects of visitations and vacations during the Holiday season.

QUESTION: Our Board-Certified Family Law Specialist lawyer Bud Klueck has some thoughts about holiday vacations from the legal point of view. Bud, what advice do you have for parents concerned about the holidays and their children?

ATTORNEY KLUECK’S ANSWER: I have four main points for our viewers to consider. Number 1--at this late date, probably no changes can occur through the court; Number 2--make a note to get started early if you want changes next year; Number 3--your best assurance of a happy holiday sharing would be to adhere to the existing court orders very specifically; and Number 4--practice and expect cooperation with your co-parent, but get your understandings formalized and in writing. Don't put yourself in a position where your having a successful holiday depends on the late-in-the-day cooperation of your co-parent, because you may not get it.

QUESTION: Bud, let's review your four points. If I remember correctly, the first one was that you can't expect to go to court for last-minute changes in holiday visitation. Was that correct?

ATTORNEY KLUECK’S ANSWER: Exactly right. The courts do permit folks to come to court on short notice, but only if it is a true emergency. The fact that Jimmy or Jenny have to leave for grandma's house a day later, may seem like a real emergency to you, but that is not the way that courts define the type of emergency that they are looking to discuss. The Court Rules state that the only two types of emergencies they will look at, on a short-notice basis, are 1) if there is a credible and immediate danger that children will be physically harmed, or 2) that the children will be taken out of California--over the other parent's objections.

To understand what kind of emergencies the Court will consider, please think about the following: an example of the first type would be mom saying that she is thinking of committing suicide and will be taking the child with her; or an example of the second type would be that dad is threatening to take the children back to Mexico and threatening that the mother will never see them again. The court will "entertain," which is a technical term for a look at, those types of emergencies--but nothing much short of that. So, as to working out the last-minute details, about the holiday visitation, you are more-or-less on your own to work it out with the other parent. You cannot expect the courts to help or to intervene.

QUESTION: Well, what if the bad thing that you are concerned about actually happens?

ATTORNEY KLUECK’S ANSWER: If you cannot work it out with your co-parent, you may have to suffer through it this year and vow to change things for next year. My earlier remarks, about not going to court, only were confined to short-notice, emergency kind of situations. What the courts encourage is filing motions, giving plenty of advance notice to the other side and to the court, and then to come to court and address the visitation issues. Custody and visitation, as well as child support, are always modifiable whenever circumstances changes.

A possible change of circumstances is having one parent refusing to be cooperative, accommodating and reasonable in the sharing of the children. So if you have a demonstrable record of an unwillingness to share, keep track of it, make a record and share it with the court in the new year. I do not want viewers to somehow misunderstand my earlier remarks to conclude that courts are not interested in folks' child-sharing concerns. The courts are concerned. But getting the courts to look at these issues takes a while and cannot happen on a last-minute basis unless there’s a true emergency.

QUESTION: Your third point was to adhere to the existing court orders very specifically, right?

ATTORNEY KLUECK’S ANSWER: Yes. That is your best defense. Remember, the courts are closed on the holidays. Running to court is not an option. Ordinarily you already have court orders. The best way to operate is to do exactly what the court orders say, at least in the short run. If there is a problem with the court orders, as I said earlier, try to change them in the new year. In the short run, adhere as closely as possible to the exact letter of the law and the court orders.

QUESTION: Your last point was essentially to be cooperative but to get everything in writing. Is that about it?

ATTORNEY KLUECK’S ANSWER: Yes. What I said earlier about being cooperative applies to both parents. It is great, even ideal, when the two adults in the room--the parents--can behave like grown-ups and be understanding and cooperative about the sharing of their children. However, consistent with what I said about adhering to the court orders exactly and specifically, if the two parents are working out together something a little different from the court orders, that is okay (and even encouraged), but make the new understanding as detailed and specific as possible and in writing--usually by e-mails.

QUESTION: Fascinating. You always give us both learned and very practical, everyday advise. If you have questions about any of the numerous perplexing issues in family law, call Bud at (619) 448-6500 or access the web site directly at www.familylawsandiego.com or through the link at the SAN DIEGO 6 website.

Bud, thank you, again.