Can My Ex Take the Kids for the Holidays Without My Permission?
The answer depends on where you are in the divorce process.
If You Are Divorced
The State of New Jersey will not finalize a divorce without a court-approved Parenting Plan in place. A Parenting Plan is a legal document that establishes the schedule, living arrangements, and major decision-making processes surrounding the co-parenting of a child. These typically include a holiday visitation schedule.
A holiday visitation schedule outlines where the children will go for all major holidays, birthdays, and school breaks. It also takes precedent over the day-to-day routine of the main custody arrangement.
For example: If dad normally has the children on weekends, but Christmas falls on a Saturday and the holiday schedule says Christmas is with mom this year, then mom gets the children on that day.
A Parenting Plan and holiday visitation schedule protect the rights of each parent and create stability for children in their new family dynamic. When a custody dispute arises, the plan provides the structure necessary to keep both parents on the same page.
At best, it’s considered contempt of court if a parent knowingly violates the terms of a Parenting Plan or holiday visitation schedule. At worst, it can be considered parental kidnapping. If the violating parent leaves the state or country with the children, they could face federal charges.
A family lawyer can help you file a motion with the court to enforce the Parenting Plan and include the assistance of law enforcement, if necessary. You have the right to file an incident report or a criminal complaint for visitation order violations N.J.S.A. 2C:13-4(a), although local law enforcement may encourage you to take it up with family court instead.
According to NJ Rule 5:3-7(a), the New Jersey Superior Court may order the following if a parent knowingly violates a custody or parenting time order:
- Compensatory time with the children
- Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent
- Modification of transportation arrangements
- Pick-up and return of the children in a public place
- Counseling for the children or parents or any of them at the expense of the parent in violation of the order
- Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children
- Participation by the parent in violation of the order in an approved community service program
- Incarceration, with or without work release
- Issuance of a warrant to be executed upon the further violation of the judgment or order
- Any other appropriate equitable remedy
If you suspect your ex-spouse may intentionally defy your custody order, a family lawyer can help you file an emergent application for custody with the court. If your application is granted, make sure all daycare and school employees are aware of the situation and prepared to enforce the custody order.
If You are Separated
If you are just beginning the divorce process, you probably haven’t had the opportunity to put a Parenting Plan in place. If you are concerned your spouse will take the children away from you for the holiday season, you have options.
A parent can file for a temporary custody order to establish a day-to-day schedule for the duration of the separation until the divorce is finalized. This schedule is determined using the “best interest of the child” criteria established by the courts.
If You Were Never Married
All parents have custody rights, regardless of whether they are married. Unmarried parents are not legally obligated to create a custody agreement after a breakup unless the court gets involved, but they have the right to do so at any time.
Your custody schedule should never be agreed to by a verbal commitment. Parenting Plans and holiday visitation agreements should always be in writing, signed, and enforced by court order.
Hire a New Jersey Divorce Attorney
The holidays can be stressful enough without worrying about custody battles. Always confirm holiday logistics in advance. If you are worried your ex-spouse may attempt to dispute the custody order during the holidays, keep a copy of your Parenting Plan handy.
For a free consultation on Parenting Plans and holiday schedules in Bergen County and Morris County, contact the NJ family lawyers at Arons & Solomon.Request a Free Consultation »