Christmas can be one of the most difficult times of the year for separated parents.
Both parents may understandably want to spend Christmas Day with their children, continue family traditions and share the excitement of Christmas morning. But when parents live apart, it simply may not be possible for everyone to have the Christmas they once imagined.
The good news is that, with some early planning and compromise, many families can agree arrangements which allow their children to enjoy Christmas with both sides of their family.
At Kee Solicitors, we regularly advise parents about child contact arrangements. Our experience is that Christmas arrangements are usually easier to resolve when discussions begin early rather than in the final few days before Christmas.
Start the conversation early
Christmas may still seem some distance away, but October is a sensible time for separated parents to begin discussing arrangements.
Leaving matters until December can increase pressure on everyone. Parents may already have made plans, booked travel or arranged celebrations with extended family, making compromise more difficult.
If agreement cannot be reached and legal advice or court intervention becomes necessary, waiting until shortly before Christmas can also severely restrict the options available.
Starting the discussion early gives everyone time to consider different arrangements calmly.
Remember whose Christmas it is
It is natural for a parent to feel strongly about spending Christmas Day with their child. However, the focus should be on what will work best for the child rather than on achieving an exactly equal division of Christmas Day.
Under Scots family law, where a court is asked to make an order concerning a child, the child’s welfare is the paramount consideration.
That principle is a useful one for parents to adopt themselves. Rather than beginning with “What time am I entitled to?”, it can help to ask:
“What arrangement will allow our child to have the happiest and least stressful Christmas?”
For younger children in particular, spending much of Christmas Day travelling between homes may not be the enjoyable solution that parents intend. There is no single ‘correct’ Christmas arrangement — every family and every child is different.
For some separated parents, dividing Christmas Day works perfectly well. For others, alternating Christmas Day from year to year provides greater stability. Possible arrangements include:
- Christmas Eve with one parent and Christmas Day with the other
- Christmas Day with one parent and Boxing Day with the other
- Dividing Christmas Day at an agreed time
- Alternating Christmas Day each year
- One parent having Christmas and the other having New Year
- Creating a longer arrangement covering the whole festive school holiday
The right arrangement will depend upon the children’s ages, travel distances, existing contact arrangements, family traditions and the circumstances of each family and child. Parents should also think beyond Christmas Day. Time with grandparents, siblings and extended family can be important to children during the festive period.
Listen to your children without asking them to choose
Scots law recognises the importance of children having an opportunity to express their views in decisions affecting them. Where a court is determining a section 11 application, a child who is capable of forming a view should ordinarily be given an opportunity to express it, with appropriate weight given to that view according to the child’s age and maturity.
That does not mean children should be placed in the middle of a disagreement between their parents. Questions such as “Do you want to spend Christmas with Mum or Dad?” can put a child in an impossible position.
There is an important difference between listening to a child’s views and making the child responsible for the decision. Parents can instead talk to children in an age-appropriate way about what they enjoy at Christmas, what traditions are important to them and how they feel about proposed arrangements.
Be prepared to compromise
One of the realities of separation is that both parents may have to accept that Christmas will look different. If having Christmas morning is particularly important to one parent, perhaps the other can have a longer period from Christmas afternoon into Boxing Day. If one parent has Christmas Day this year, the arrangement could reverse next year. Try not to concentrate only on the number of hours each parent receives.
A workable arrangement which allows the children to relax and enjoy meaningful time with each parent will usually be preferable to an arrangement which is mathematically equal but involves constant travelling and handovers.
Think about the practical details
Once the broad arrangement has been agreed, record the details clearly. Consider:
- When will contact begin and end? Avoid expressions such as “Christmas afternoon” if one parent understands that to mean 1pm and the other means 4pm.
- Where will handover take place?
- Agree who will collect and return the children.
- What happens with presents? Children should not feel anxious about whether they are “allowed” to take gifts from one home to another.
- What about travel? Allow realistic travelling time, particularly if parents or extended family live some distance apart.
- What happens at New Year? It is often easier to agree the entire festive period at the same time.
A short written agreement by email or message can prevent misunderstandings later.
Try not to compete
Children do not need two competing Christmases. Trying to outdo the other parent with presents, activities or expensive experiences can create pressure for children and resentment between adults. Children are far more likely to remember whether Christmas felt happy and relaxed than which parent bought the biggest present.
It is also important not to criticise the other parent or their plans in front of the children. A child should be able to look forward to spending time with their other parent without feeling that doing so is disloyal.
What if there is already a court order?
If a court order regulates contact, parents should check carefully what it provides for during Christmas and the festive holidays. Sometimes an existing order contains specific Christmas arrangements. In other cases, the ordinary contact pattern may technically continue but no special provision has been made for Christmas.
Parents can often agree sensible variations between themselves, but where there is disagreement about the meaning or operation of an existing order, legal advice should be taken. A parent should not simply assume that the normal weekend arrangement automatically determines what happens over Christmas.
What if we cannot agree?
Not every disagreement requires a court action. Solicitors can often help parents narrow the issues, exchange proposals and reach an agreement before matters escalate. Depending upon the circumstances, negotiation or mediation may also assist.
Where agreement genuinely cannot be reached, an application can be made to the Sheriff Court for an order under section 11 of the Children (Scotland) Act 1995 regulating matters including where a child lives and contact. The court’s concern is not which parent has “won” Christmas. The child’s welfare is paramount, and the court must also consider the child’s views where appropriate. Court proceedings should therefore generally be regarded as a means of resolving an issue which parents cannot otherwise resolve, not as the first step in Christmas negotiations.
Do not leave it until Christmas week
Perhaps the most important advice is simple: deal with Christmas early.
If you already know that Christmas arrangements are likely to be disputed, obtaining advice in October or November gives considerably more opportunity to explore solutions. Waiting until the week before Christmas can create unnecessary urgency, expense and stress, at precisely the time when parents want their children to be enjoying the festive season.
How Kee Solicitors can help
At Kee Solicitors, our family law team advises parents throughout Scotland on child residence and contact arrangements, including disagreements about Christmas, school holidays and other special occasions. We can help you understand your legal position, negotiate practical arrangements with the other parent and, where necessary, advise you about court proceedings. Our aim is to help families find arrangements which are workable, child-focused and provide as much stability as possible.
If you are concerned about Christmas contact arrangements this year, the best time to seek advice is before Christmas becomes an emergency. Contact Kee Solicitors to speak to a member of our experienced family law team.
This article provides general information about Scots family law and does not constitute legal advice. Advice should be obtained on the particular circumstances of your case.
