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Episode 5 - Don’t Let Holiday Possession Scheduling Become Horrendous


Episode 5 - Don’t Let Holiday Possession Scheduling Become Horrendous

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast.

Good afternoon and welcome to the Top Texas Lawyers podcast and that extending you holiday wishes and Happy Thanksgiving. And with me, as always, is the Macartney.

To my John Lennon is Sam Sanchez. I love it. Hello. That's correct. So, Ray, let's talk a little bit about our topic today. Let's talk a little bit about do you have any good tidbits in the news today or.

Yeah. I would tell you, obviously, you know, we're in the time of year where people are always wanting to contemplate and celebrate the holidays. And so I thought as a a lead in to what we're going to talk about today, we might spend some quality time talking about crazy things that happen in the holidays. One measly shopping extravaganzas. You know, people tend to spend a whole lot more money than they would plan on offensive gifts on record. Check this out, Brian. I know that you're going to buy this for your wife. Two point eight million dollar pair of socks. 2.8 million dollar pair of socks. Of course, these are famous stock. They're they're worn by Michael Jackson when he first did the moonwalk. But all right. Tell you, two point eight million dollars, brother.

I got a lot more reasons than a very just sticky socks. OK. Well, that's an old pair. They are. They are some famous socks. Now it's all pair of sneakers, socks for 2.8 million. They're going to look up.

That is something that is something, you know, people want to spend money on all kinds of things. I take that it's tongue in cheek. But I do think that the holidays tend to always bring in you know, they call it the silly season for a reason. Right. People just tend to get silly. It's like sometimes their brain stop working things get all kinds of confused whether you're fighting with somebody in the parking lot over the last parking space at the mall or, you know, you're just kind of like in this kind of euphoric state of the holidays.

Well, that's true based on the line that I see wrapped around the local Louis Vuitton store near my house. People do get crazy around the holidays that they do, especially paying those prices for a purse. That's exactly I do.

I do think it's a great topic, obviously, to touch on the craziness that can ensue. You know, when you've been through the divorce process, Brian, you've been through, you know, whether you were married, not married, you have children. You know that when it comes around the holidays, it's a special time of year.

Everybody wants to spend time with their family, especially especially during what I would call the Santa years when the kids are a little bit younger.

They're still experiencing the magic of Christmas. That's always, always a always an important and special time.

Agreed. Agreed. And I think in that when you're talking about parents who have separated or no longer living together, whether they be divorced or never been married, never lived together.

You're going to talk about a possession schedule. Right. And one of the most confusing parts of anyone's possessions, schedule is typically the portion that deals with the holidays.

Oh, absolutely. I've done more litigation over the holidays and going into court right before Christmas or right after Thanksgiving, a rival for Thanksgiving to litigate these things than I than I care to talk about. So let's let's let's break it down. Let's say you're in Texas and you are going through a divorce. What can you expect from the holiday possession schedule?

Sure. So in Texas, we have a codified possession schedule. What I mean by that is that it's already kind of written into a portion of the statute. That's a guaranteed minimum time for parents.

And this. And I didn't mean to interrupt this. This goes for anybody. I mean, whether you have primary custody or don't have primary custody, it doesn't really matter in terms of the holiday possession, is that correct?

That is correct, Brian. Great point. And so basically, as you go through, there's going to be fundamental rights. You know, we've kind of touched on those previous podcast, which was just basically, you know, these rights and duties. But a separate kind of parallel railroad track that runs along those is possession and access in a standard possession schedule in Texas. We have a holiday exchange schedule. It's usually going to alternate between parents. So one parent will have odd years. Thanksgiving, the next parent will have even year's Thanksgiving if you have Thanksgiving in your even or odd year than typically in that same year. You are not going to get the first week Christmas break. And so it offsets basically those exchange periods will begin and end of the time, school dismisses for the holiday and then the normal possession schedule will resume upon school resuming at the end of the holiday.

And normally you're going to get from the time school that's out. So if there's an early release and then no firm for four kids, there's usually an early release the Friday before the week of Thanksgiving and then you're out. The kids are usually off for the entire week at Thanksgiving. Then they don't go back to the following Monday. So typically you're going to have from the time school lets out until the time school goes back. So that's all. That's a fair amount of time. And then they exchange for that. Then what happens when when we roll up to Christmas break?

Well, so let's talk a little bit about that, because one of the things that I always try to explain the clients is there's a lot of simple ways. They're very simple things that you can do. So during the divorce process, as you're contemplating, what do I want life to look like after divorce or after the entry of a suit affecting parent child relationship order? You know, what does that possessions look like? Well, exchanging it schools makes things really easy. All right. Because you know that your week before the holiday begins, if it's not, your holiday is going to end when you drop off at school. And typically in a Texas order and even not, let's say in Florida, it's not going to be by statute, but it's something that you should contemplate and incorporate into any possessions. Schedule is. How do holidays get extended by the school calendar? Because you and I both know, Brian, it would be great if schools had the same calendar year in and year out, but they change them all the time. Their teacher in-service days, they extend the holiday, they shorten the holiday, they make it a half day. It can really confuse parents.

Well, the other thing to contemplate also, if you're going through this process is if you're let's say you're not Christian, let's say you're Jewish or let's say you're Muslim or you follow some other religion. You have to contemplate those those various religious holidays that fall around this time of the year for, you know, for whatever religion you choose to practice. I mean, that's an important factor to take into consideration, because obviously, you know, different religions have different different things that are important in holy days for their particular religion.

Oh, absolutely, Brian. And, you know, that's one of the things that as a smart lawyer, a good lawyer and a good client, you want to have those conversations between one another to make sure that you're encompassing all those kinds of special periods of possession in the underlying order and to contemplate those odd shifts in days. As an example, if you're coming into Thanksgiving week and there's a teacher's teacher in-service day on the Friday before the break begins. So technically, for all intents and purposes, while the kids don't have school, it's not part of the Thanksgiving holiday. Who gets that day? Right. These are the kinds of things that completely frustrate parents can send a relationship completely sideways. It's normally good because no one can figure out in their order if it's not well crafted, well drafted, what to do.

And I want to say that doesn't come up that often, but unfortunately it does. And I think that issue, that very issue came up last year because I think they had a hand in service. They either right at the close of Christmas break or I'm gonna call it the winter break or the Christmas holiday break or they had one right to taling to think the beginning of Thanksgiving. I can't remember exactly. But that caused a lot of a lot of consternation for a lot of folks.

Sure. It's a lot of heartache and it's unnecessary because the last thing you want to be spending your money on when you intend to buy the 2.8 million other pair of socks, is your lawyer in advance of a holiday weekend because you guys can't figure out whose day it should be and everybody's got plans.

And so if you've got that, if you have the if you have the Thanksgiving possession schedule and then you've got Thanksgiving, let's say you're in an even year and you've got the Thanksgiving, you're Joe Smith and I've got my kids on Thanksgiving. What happens to me at Christmas time all around the around the holiday and winter break when school lets out?

Sure. Presupposing, of course, that they have a standard possesions schedule or a modified standard possession schedule. They're following the language and the standard possessions get. The parent who is not in possession during the Thanksgiving holiday usually gets the first week of Christmas break. So that's typically from the time school dismisses that Christmas break until noon on December 28.

And that's a that's a key factor because that's that that if you want a little history that used to not be the case, that's been a relatively recent change. And by recent I mean within the last, I don't know, eight or nine years, they used to be that they exchange used to be on the twenty say.

But the difference with that was, is that the person who got the second half of Christmas usually got a longer period of time than the person who got the first half. But the but the legislature and other and all their infinite wisdom decided that they wanted to try to split the holiday break as close to equal as possible. I mean, it doesn't work that way for every school district.

But what they're trying to do is get it and get the day's split as equally as possible. So you get that first half of Christmas. I mean, you're not going to get that if you get that first half of Christmas. You do get Christmas Eve and Christmas Day, which is important to a lot of people, obviously. But, you know, but you will not get Thanksgiving in that in that given year.

You always have you know, clients will ask me. They're like, well, it feels like the parent with the second half the break gets more time. Typically, that is absolutely true. They're going to get more time. But the off it's consider an offset, because if you don't get especially in like we talked about those Christmas years, their kids are small. You know, Santa is coming to the house and you're missing that. And if you're missing that, the legislature really look at that and said, well, as a compensation, even though, you know, we all know there's no way to compensate for time in relation to the experiences, they looked at it and said to make it more palatable, we're going to give the parent who's missing that a bigger chunk of the Christmas holiday, typically. Now, it doesn't always work out that way sometimes to your point, and it is pretty, pretty near 50 50. But a lot of times that parent with the second half of that holiday break is going to get more time as an offset.

And it is you know, it is kind of difficult, you know, especially when you're you know, I talked about before, especially when you're in the Santa years, if you get that that second half of Christmas, if you're in the you know, you're not going to have the kids on Christmas Eve and Christmas Day. But the tradeoff is what happens next year.

Exactly. Exactly. And so one of the things I always tell clients to contemplate as you're in the process with young children is understand that the statute as crafted, that standard possession schedule language, it's available for modification. So if you've got a great relationship with your ex or soon to be ex and you say, hey, I want to break up the holidays differently, we could do all kinds of creative things outside the boundaries of that statute by agreement.

Yeah, and to keep in mind that this that the standard possession order that we're talking about always allows for agreements between between parties, if you can. You know, if you can come to an agreement on something, you can always do whatever you want. If you can come if you can come to an agreement that the standard possession order is designed for those situations where you got absolutely cannot agree. But I guess that the trade off you're talking about is let's say you miss you get the Thanksgiving, you get the second half of the Christmas break, the twenty eight through the time the kids go back to school. Obviously, you've missed out on Christmas, but the next year you get you get the first half of Christmas. So you get the time school that's out until the twenty eighth at noon. However, you do miss out on Thanksgiving that year and you do miss out on the second half of Christmas so that the trade off is odd and even years. But that is, you know, for some people that's very important. And, you know, some people obviously celebrate Christmas differently. Some people celebrate open and crowd presents on Christmas Eve. Some people go on Christmas Day. And it's it's different for everybody. So you've got to kind of, you know, look at your situation and find out find something that works for you. I mean, I have a lot of people that, you know, still do celebrate the Christmas morning together, especially with younger children, even though they are divorced. So, you know, it's something to contemplate, especially if you have a decent relationship with your ex.

Oh, absolutely. Absolutely, Brian. I've done I've done cases where parents and even especially the children are really young and small. Like to your point, you know, share that holiday or they'll split the holiday. So like someone may say, you know, this is an extreme case, but someone said, hey, you know what? I'll take Christmas Eve until 10:00. And then, you know, the parent came over. They celebrated a little bit together, exchange gifts between one another, 10 o'clock. They went to the other person's house and Christmas morning they were there. And they would flip that until the children turn five. And then at the point they're five, they're like, hey, now they're bigger. Let's switch out. Everybody can have kind of holiday time. Now that the counter position to that, I just always tell parents and I would caution everybody listening is that consider whatever you put in an order is restricted. Right. When you can't agree, the order controls to Brian's point. And so make sure you can live with what's in the order, because you can always agree to great things. But the order it's to control and it's where people get into a lot of trouble a lot of times and holidays. Right.

And it's very, very difficult to, you know, if somebody is not cooperating during the holidays, I can tell you that it's very, very difficult to find. To find the judge, you know, typically on Christmas Eve or Christmas Day, that to deal with your issue, wait until after that year, after the first of the year, typically, because all most of the courts do take time off around the holidays. I mean, there are some all usually courts are available for absolute, you know, life threatening emergencies, but they have to be very, very, very life threatening emergencies. They're not going to they're not going to deal with your possessions, schedule problems, or you're dealing with an angry ex or anything like that. They have to be health or safety, welfare or emergency type issues.

Exactly. Exactly. So one of the other things I would tell you in relation to the holidays schedule that that can become an issue or that parents should contemplate is NOAD. Right. Notice and travel. So, you know. Now the world is a much smaller place. Nine. O'BRIEN You've probably been to most of the countries in the world. You know, I wish I was, but I'd tell you, you know, people do travel at the holidays and a lot of times, you know, a good rule of thumb is just put, you know, notice the other parent if you're going to be traveling with the children. You know, you never know. Some people made, you know, while it's European period of possession, they may want to be able to, like drop off gifts or something in the interim so that, you know, Santa gets all the gifts in there and the right time or whatever the case may be. And so that notice can become really important, because if you have a poor level of communication, that those are the kind of provisions that you want to contemplate putting in in order to make sure that everybody understands what's going to happen during the holidays.

Plus, if you're traveling, you may not be in a place where you're accessible by Skype or face time or cell phone or or whatever you want to make sure the other person knows that. So that, you know, a lot of people, whether you have the kids on Christmas Day or not, you're going to want to talk to your kids. So, you know, make sure that's contemplated because it is important, you know, to just keep up that line of communication if you don't have your kids for that particular Christmas Day.

Oh, without a doubt. Without a doubt. That is one of the things that I was going to touch on is consider and contemplate electronic access. You know, in today's age, you know, while it's great to be physically in person, to be able to touch somebody, feel somebody, a lot of times you can experience stuff by agreement. You know, we have face time. We have, you know, social media where you can, you know, post videos or exchange videos or so. There's a lot of different things that creatively attorneys and parents can do to help minimize the stress of what can occur during holidays.

And like I said, never. And everyone talks. Lawyers will always good lawyers at least will always talk about being able to co-parent with your ex, especially if you got younger children. Never is co-parenting more more necessary than I think during the silly season, during the holidays, because you eventually at some point you're going to need that person, that ex for something. You may not think so right now, but you may need that ex for something down the road. And like I said, trying to maintain at least a decent working relationship can can make the holidays that much more enjoyable for you and for your kids. I mean, nobody likes fighting and nobody likes going to the courthouse on the holidays.

That's for sure. You know, they always talk about the golden rule. I tell my clients, I want you to apply.

The Golden Rule is, you know, do unto others as you would have them do unto you. The platinum rule is do unto others as you would do unto yourself.

So, you know, if you're going to handle that situation, it's going to be beneficial to you. Make sure that you're applying those same rules, especially as parents.

You know, I mean, I can tell you a story that, you know, I had a case one time where the opposing side decided that they didn't like my client, who was the mom, so much so that they attempted to get a temporary restraining order from a judge, too. And they made all kinds of crazy allegations to keep my client from taking that the child on her first trip to Disneyland. I mean, absolutely ludicrous. It took us about, you know, it took us a little bit of time. But, you know, a couple of days, you know, there was a couple of days up in the air right before Christmas for the judge knocked out that temporary restraining order. But it's just one of those things where that probably never should've happened. And, you know, just be aware that that sometimes silly things happen in the holidays. And, you know, I say that just to caution you just never like like Sam said, the platinum rules is where it where you need to try to work within that within the confines of holidays.

Couldn't agree more, Brian. I mean, obviously, when all of our our clients are our friends, our family, our listeners to have a happy holiday. And I think this is definitely something that, as you think through it, make sure you understand and read your order if you have questions about the parameters of the provisions that apply. Now is the time to be asking don't wait till the holiday day or the day of exchange or the day after, you know, get it, get ahead of those. If you have questions or concerns, contact an attorney, get good counsel and make smart decisions. Absolutely. Well, anything else? You got anything else? No, just other than, you know, I hope you and yours have a great, fantastic holiday. And obviously I'm looking forward to our December version of what we talked about next.

Yes, it's very good to talk to you. And I wish you and yours the a safe and happy Thanksgiving. And I appreciate the time. And I really hope, listeners, you got something out of it.

Like I said to him before, it's said Sam said what Sam said before, it's really a good time to be looking at your order, looking at your situation and coming up with the plan for the holidays. Now, before, you know, before the holidays and the silly season descends upon us because being prepared and knowing what. Know what your rights are is is super important. And I look forward to borrowing those 2.2 million other socks buying.

All right. Well, maybe. I'm definitely not going to lot of them if I do get them. Well, good talking to you. And I wish everybody could all of it. All right. Take care.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at Once again, that's Thank you very much.

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