Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:32
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Legal, and today we have our firm attorney, Andrew Hayes, to talk about co parenting and the holidays. I'm calling this one making a list and checking it twice. So before we started on that, Andrew, would you like to talk a little bit about yourself, and what you do here at Pacific Cascade Legal?
Andrew Hays 0:55
Sure. I am a family attorney here at the firm. And I handle divorces custody, modification, parenting time modification. prenups, you name it for family law? And I do it.
Steve Altishin 1:12
I love it. I love it that you're the perfect elf to join us today. Yes, okay. Sorry for the bad puns, making a list checking it twice. Let's make a list. And we'll start with why are the holidays so hard on CO parents and co parenting plans.
Andrew Hays 1:31
I know it's true. We are getting into the holiday season and are running into the same problems. And it's emotional, the holidays are already stressful. It's already stressful to figure out how you're going to pay for everything, what you're going to do, all the strain on your body of decorating and putting the lights up. And then on top of that you have this ever present strain of co parenting with another person and figuring out all of the details for what's going to happen. So that's just the background. That's just a background, that's a universal for everyone. Nevermind if you really care about the holidays of Thanksgiving, or Christmas or not, most people do. And so add on top of that, what's going to happen. And then you just it only takes a little tiny little drop of any kind of drama to explode.
Steve Altishin 2:29
That is so true. And let's kind of talk a little bit about the holiday arrangement, the holiday parenting, you know, who gets who, where, who gets what, when, and maybe a little bit about why those can go bad. How much you really need to have, you know, down on paper, if you have anything down on paper, you know, are there different ways to do it. But when we were talking about this today, or yesterday, we're talking about today, and we went through this part and you offered a something that is actually happened and is happening that has to do with school and school being part of the Christmas holiday schedule, and things that can go wrong and why don't you share that one with us? Absolutely.
Andrew Hays 3:32
I am in Salem, most of my clients are down here in Salem and Lane County, Eugene Yamhill. County area but I do have some clients that are up in Portland. And as I'm sure all of the parents of the Portland Public School System are already very well aware of the the teachers strike necessitated that the school he needed to do some makeup classes and they just announced Well, a couple of weeks ago, I think they announced that of the 11 I think the makeup days that five of them are going to be the first week of winter break. And most well I shouldn't say most because parenting plans can be infinitely customizable for whatever it is but the one of the standard. Just the plans we reach for if no one has any better idea or if they don't need anything better is that one parent gets the first week of winter break from school getting out all the way up until Christmas Eve usually sometimes Christmas day and then the other parent gets it from Christmas Eve Christmas Day Two when school gets back in it comes out to be about equal. One family does Christmas on Christmas Eve the other one does it on Christmas day and then the next year they switch well. I have a client that has that. Their parenting time this year happened to be an odd year and so they get the first week of winter break and well. Now there's no winter for raked for a first week. Now Portland's lets the kids out. I think they're letting them out. It's Friday. Yeah, they still have Friday, I think. But so his parenting time was just obliterated for the holidays. And it's super important. And this client lives far away from his child. So that's that was rough on that. And so having a parenting plan that takes into account these kinds of things is a good idea. Most parenting plans have your standard time. And then you have the holidays, that Trump the standard time, if there's a holiday that then you go to the holiday and the highest of all, usually is birthdays, that trumps everything and all the time, the holiday schedule will take precedence over a regular schedule. And so one of the problems that we ran into in this other case, is that the holiday plan was triggered by school being led out. And so because school is not going to be led out the first week, that meant the holiday plan didn't take into effect. And that meant that his parenting time was obliterated. Now, thankfully, cooler heads prevailed in that case where the two sides got together, and we all acknowledged it and we said, Okay, we need to figure something else out for this year, just for this year. So we did a temporary agreement to split the holidays, so and so and and however the parties wanted to do it, and there was an amicable agreement, which was fantastic, because that's what's going to be in the best interest of the children. In that case, of course, sorry, I'm just gonna keep spiraling out for points on points on points if I keep talking.
Steve Altishin 6:50
No, no, that's that's That totally makes sense. Because sort of, like you're saying people go into holidays with kind of one or two things actually have a parenting plan that talks about the holidays. And in that case, in this situation, you know, what you said is that sometimes even if it talks about it, it doesn't can you know, consider every single thing that can happen. And that's when flexibility comes in, isn't it?
Andrew Hays 7:17
Yes, yes. And the flexibility will, I think is the most important thing, there's two things that are in my mind, the most important thing for for the holidays. And it's one just making sure you have a plan that is fair ahead of time. And you're right, you're never going to be able to pre plan and have something that takes everything that might happen into account. So that's important. And so fairness ahead of time, so that you can have that plan for so that the parents can feel that it's fair. And second, it's so important to keep in mind the best interests of the child, that phrase gets thrown around every two seconds in this line of work with with parenting thing inside adequate, what's in the best interest of the child? Well, what I mean by that this time is that children tend to take drama upon their own shoulders and take responsibility for it. It's not logical, they shouldn't be taking it on there. They might be having parents doing all they can to make sure the child doesn't take any kind of tension onto their own shoulders, but it's just going to happen. If there's any kind of relationship draw, I've talked to people that have grown up with split households divorce never married in the first place. And yes, almost every single one that I talked to said, If there was ever tension between the families, they took responsibility for it in their heads, even though everyone was telling them not to, they just did so having things planned ahead, which is why I love your make a list and check it twice. But also keeping in mind for flexibility. What is in the best interest of the child, the best interest of the child is that the two families will be harmonious and reacting to situations in a fair and appropriate manner. That's why I was so happy about the resolution of my case, where according to the language of the judgment, if you were just to look at the the judgment as written, he was out of luck. He just lost his parenting time with no makeup parenting time at all. But Cooler heads prevail. That's why I was so happy because it is in the best interest of the child to see both parents for the holidays. And it's also in the best interest of the child that that should be agreed to amicably between the parents so that they're all happy with it. They're all going forward with a unified front. Absolutely fantastic. That's what I love to see in that case. And
Steve Altishin 9:49
that kind of led to one of my checking it twice ones which was you know, Grandma only comes to town on the this holiday. And you know, it doesn't have to be the holiday that and grandkids are with the parents. And you know, it'd be kind of nice if we'd be able to allow her to see the kids or have something. And like you said, Being flexible is the key, even when it's written down a night and then leads to other times, I'm talking to people, and it's like, well, it's my time with the kids. So I can do whatever I want with that kid. And that leads to, you know, my sort of checking it twice question, which is, can I take my child to midnight mass? Well,
Andrew Hays 10:31
that is assuming I'm Catholic. Right, right, right. On its face, yes, you do get to do whatever you want, within reason during your parenting time. And everything that you need to do, of course, has that umbrella of best interests of the child. And it could very well be in your home that it's very, very important to have some kind of religious service or observation now I'm staying away from the whole custody issue, because it's the custodial parent that decides what religion the child identifies in. But even if you're the non custodial parent, that doesn't mean your child can't participate in things they just maybe can't identify as it or or get too hard. As far as midnight, maybe it's important for your child. In that case, you'd want to make sure that you're making up for it, making sure the kids gonna be able to sleep, sleep in the next day, communicating with the CO parent is very important so that they're aware that it's happening. Absolutely. So communication and figuring out what's in the best interest of the child with the CO parent is where it's going to be no, I say that knowing very well that a lot of situations are co parents are never going to agree on that.
Steve Altishin 11:48
As a sort of the the counterpoint to that, and just exactly what you're saying was well, yeah, of course, you can take your kid to midnight mass, you know, but But can I use Easter to baptize my kids? That sort of gets into the custody issue, doesn't it?
Andrew Hays 12:05
Yes, yes. That's what religion the identity of the child identifies as in any kind of religious ceremony that imparts kind of identity or membership, that's going to be a custodial decision. Probably. I mean, it will always throw probably at the end of every sentence and family law.
Steve Altishin 12:24
Course, we've talked about that, you know, I mean, you could say something, I don't say something, everyone can say something. But till the judge says something, you don't really know for sure. Which sort of goes to that, that question of best interest of the child? And how would you answer a question, if someone says, Well hold it, hold it, my ex spouse, wants to take our kid who's allergic to bee stings, to a bee farm? Yeah,
Andrew Hays 12:52
that's probably past the line for risk for me, as far as that probably don't want to do that. So this is something we talked about yesterday, a lot. There's always these two sides to the same coin, in my mind doing all of these analysis for individual cases. Number one, if we were all going in front of a judge and saying, Judge, we want to do this, they want to prevent it's make a decision for us. And, of course, there's no way to predict what the judge is going to do in each individual insurance was most of the time, we already kind of know, for instance, your example that you mentioned earlier, grandma, who lives on the other side of the world, or the East Coast, is coming to town for Christmas, she's only going to be here for these days, can we flip the schedule around to make sure the kid is there so that they can have a one on one in person interactions with Grandma, I don't think there's any judge that I've ever been in front of that would not be happy to grant that. And so to the parent that doesn't want to do it doesn't want to allow that change so that they can see Grandma, that's when a judge is going to order it is in the child's best interest to have a good relationship with with extended family. And of course, the judge is going to order that and so that should happen all the way over to your other extreme of the beef bee farm for a kid that's allergic to bees deathly allergic. No, no, no, we need to, to not do that. Now, of course, as I said, there's two sides of the same coin, the other side of the coin, is that we realize that no, you're probably not going to litigates can grandma come to town and this change? First of all, sometimes these changes happen. Just now we're still dealing with I'm sure a lot of people are still dealing with holiday drama that that hasn't been resolved yet. And there's no way we're going to get into a courtroom. For a lot of modification or or even fast set hearings, the courts are already full up with business and so unless there's some kind of immediate danger thing or immediate danger motion that you'd like to bring, probably not going To be able to have a judge look in front of it, plus it costs time and money. It costs a lot of time and money and headache. And so talking to lawyers talking to other people that are knowledgeable about what a judge might do can save a lot of time and money. For instance, the grandma instance, like I said, I don't know any kind of lawyer, I don't know any kind of judge that wouldn't say the same given the same set of facts. If there was something else added to it short, that might change. But so
Steve Altishin 15:28
obviously, the whole coordinating of the parenting time, you know, terms other like you said, other parenting time, times over on their head, because it takes dominance over it. And there's, there's issues, clearly one of the big issues at holiday time, you know, the other big issue, and I don't know if it gets addressed as much, but down at the ground, and it happens all the time. And it's coordinating gift giving plants, it is a thing, isn't it? It's a real issue that comes up. And it's not something that necessarily parent able give parent B, a sweater every other year kind of thing you can do? Yes, I
Andrew Hays 16:13
can certainly well understand the feelings and thoughts going through parents heads around the holidays for gift giving, not exactly the drama, but it's just gift giving issues. And how much do you get? And what happens with the other person? How well are you able to coordinates because you actually had in the notes that you sent me, I loved your idea of First of all, coordinating with the other parents to make sure that you're not going to double up on anything. And also, maybe even helping the child pick out a gift for the other parents. I love that idea. Now, there's possibility for drama there, of course. But that sounds like a wonderful activity for parents and child to engage in. For one very important or for two very important reasons, I'll give the good reason and still a good reason, but maybe not so good reason, it's still good. I'll explain that third babbling. The first good reason is that supporting the other parents as a loving, close relationship with the child is a wonderful thing for the child. You take what I said earlier, where if there's any drama, the child will take it upon their shoulders as nine times out of 10, the child will take psychological responsibility for any kind of drama. And that includes gift giving drama. And so I very strongly counsel all of my clients think twice before you try to start playing games with a gift giving if you want to do if you want to get one up on the other parent by getting a last year nicer gift, it is going to cause drama and the child will suffer because of it's just that's my prediction prophecy, but flip it on its head and then you have your situation where you're helping the kid get a gift for the other parent, pick one out help by it, okay, there you go. And then maybe you're cheating a little bit where you already kind of know what the other what might be a good gift you've already coordinated with the other parent, but that's the kid doesn't need to know that. But that reinforces that the other parent, oh, I hope you'll have a good time with the other parent. And here's this other gifted adult, it's fantastic. We're having this, you're getting one on one time with your child going through a store trying to pick out a gift, maybe you can, I don't know, if the Oh goodness, I've been to a mall in decades, if they still have those gift giving trees where you take a little tree that has the some child in need, has scribbled what they want, and you go out with the kid to go find it to get the kid that's a fantastic activity. It's kind of like that, and it supports it now, that lowers the sense of drama, it's a fantastic activity for you to do with your child and also helps the holidays be a memorable, positive experience for the child and for you. Now on the other side of its if there is drama, and you know, it is let's say you know, the other person is going to be you just know the other person's going to be petty with the gifts, there's no way you can stop it. There's no coordination possible. It's still not a bad activity. Because of one of the custodial factors, one of the custodial factors, custody is ever going to change. Or maybe you're maybe someone's about to go through a custody battle where the judge has to look at the statutory factors of custody, one of the most important factors for the custody, I call it number six, even though I think in the statute is F or whatever, but it is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parents to the child. So that if you need no other motivation that that there's a motivator right there.
Steve Altishin 20:05
I love that. I love that, you know, the other side, when it comes to holidays, feels not like wine feels like one of those Dungeons and Dragons dice. But, you know, plenty sides to them. They all create different results, which, again leads to, you're talking about the, you know, not interfering and not you know, and being stringent in, in helping your child relate to the other parent, but there can be some issues as is on my checking it twice question Can my ex spouse give our child an AK 47 For Christmas,
Andrew Hays 20:47
I am not quite familiar with gun ownership laws and regulations in Oregon. However, if there is probably not an AK 47, probably not any kind of automatic rifle. But as far as any kind of gift that the other parent might think is inappropriate, such as the first firearm. I know, certainly I have met many families, I come from a family like this, although not personally not my personal father, but to the rest of his family. Gun ownership is very important to them, there's a tradition of the BB gun going into the first rifle, they teach safety, it's they're all very, very safe with it. And that will be a conversation that you have to have with CO parents. And so know your other parent probably can't get the AK 47, or anything above that flame thrower or anything like that. But that is a conversation you'll have to have to the CO parent knowing that yeah, that pair probably can't get them the BB gun. Yeah, they will have to deal with it.
Steve Altishin 21:53
And and, you know, that's exactly what having to deal with it is is actually a big thing. Yeah. I mean, it's, we kind of talked about this, it's not, especially when you get to kind of like holidays and birthdays and things like that. It's like, it's not about you maybe today. So, you know, kind of looking at it from from some other people's point of view. But I do have one other checking and choice question which I actually have hear people talk about, and it's it has to do with support, especially child support, and buying things for the kids. And in this case, I'm just going to put it down to you know, can I reduce a portion of my child support payment to cover my portion of the gifts we give to the kids? No.
Andrew Hays 22:44
Child support is set by statutes, the legislature set the calculator and the plug the numbers into it for for child support. Now, there is an option of stipulating to child support when you're planning your parenting plan and in the courts. And so if you want to take Christmas into account, absolutely you can you can shift it around, I believe at the end of the calculator, it's up to 10%. So there's a percentage that you can kind of shove it up or down for various reasons. But no, unfortunately, you do not play games with child support. And anyone that is tempted to play games with child support, I will remind them that there is a 9% annual interest on unpaid child support that starts to accrue the very moment that it becomes due or past due month by month. And so don't play games with child support.
Steve Altishin 23:47
The other thing you had talked to me about that kind of goes with this last sort of area that I want to cover, which is just really we've touched on it, focusing on your children making the holiday special for them, you know, who What are you going to prioritize? You know what, you know, what do you really going to do at the end of the day? And and how much you're going to fight? And you told me you told me an interesting story that you have told your clients in that you go to a judge two things you don't want to have to have happen I think you said one is you know, you're getting thrown in jail and others your attorney getting thrown in so there are things you really you really need to kind of look at going you know, am I just being just ridiculous?
Andrew Hays 24:39
Yes, and I always okay, I'm not I'm gonna say this very briefly. Because I thought for the length at length about this, we all have confirmation bias. We all are looking at the facts with our confirmation bias of we want our actions to be reasonable. Therefore when we look at our our motivations and our actions and someone else's actions that has that lens over it have confirmation bias. So find someone that is neutral, that will tell it to you straight. So maybe not a close friend, but maybe your close friend tells it to you straight every time and run it past them. So that you're not standing in front of a judge with a judge leaning over the bench looking at you saying you just spent how much on an attorney to come to me. And say, for instance, my case that happened, school took away that the other parents parenting time, and you want to tell them to just go hang out to dry? You don't want your kid to spend any time around Christmas with their other parent? I'm going to remember this. You do not want that to happen. Yeah, yeah.
Steve Altishin 25:46
And we are really close to the end. Wow, we really blew through this. So I am going to ask you one last question, which I think takes in some of these issues, and a term that you like to use as well. So my question, originally, checking it twice was my ex is taking our kids to Disneyland in California over Christmas vacation? Well, then why can't I take them to Disneyland Paris next year, though,
Andrew Hays 26:20
for as long as it's during your parenting time. And as long as there's no travel restrictions or anything in your parenting plan to do that, although I think you're referring to but the term that I use, I call it Disney landing. It's where one parent plans a trip to Disneyland, tells the kid about it. And then tells the other parent and oh my goodness, oops, it's during your parenting time. So Oh, you better you better not have a problem with this or else the kid will be devastated. And it will be your faults. I call that scenario Disney landing. And it doesn't have to be Disneyland. It can be anything. It can be anything. Don't plan things on the other parents parenting time during without talking to them first because hey, if you can get a trip to Disneyland, but for some reason your work, has it. Okay. It's only in this day. Okay, yeah, we want to do a talk to the other parent, I hope that the other parent would say, Oh, that's fantastic. kid gets to go to Disneyland here. Let's move the dates around and do some makeup parenting time. And, and that's fantastic. Cool. But Jones, do not Disneyland. Do not plan things. And especially don't tell your kids about it. Before you tell the other parent about it. Just to me de facto you can't co parent this just need to go back. Take the parenting class and have it help if I if it's ever in a courtroom and a judge hears that story, because that will hurt. Doesn't matter how much you want to do. It doesn't matter how good you think it's going to be do not Disneyland, the other parent.
Steve Altishin 27:51
And I'm assuming that also means maybe especially means don't have your kids tell the other parent about don't make that contact be through your kids to make them especially? Oh yeah, dad want to do this? Can we go kind of thing?
Andrew Hays 28:08
Oh, yeah. Yeah, kids shouldn't be messengers or advocates or anything. Yeah. Now that that said, we have to throw that in some parenting plans. And I think I can't remember that provisions in the Oregon model parenting plan or not, but we throw it in if it isn't. The children will not pass messages, no matter how benign sometimes.
Steve Altishin 28:26
Yep. Yep. I love it. Well, no, we are unfortunately completely out of time now. And thank you so much for being here today to talk about this subject co-parenting The holidays. It's not an easy thing. So thank you so much for being here. We're happy to be here. And everyone. Thank you for joining us today. Until next time, stay safe, stay happy and be well.
Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.