Happy Holidays Everyone! Even though we sit here (mostly at home) mired in the heat of Sacramento in August (for me), the holiday season will be here before we know it. And for those of us involved in parenting disputes, how those holidays will be spent is a fairly common issue.

The holidays will be here before you know it, and everyone — especially the kids — deserves to have a peaceful holiday experience with family and friends untroubled by last second changes and stressful conflict, pandemic conditions aside. 

Having practiced family law for some years now, one of the most common frustrations for practitioners and for judges is the late filed holiday vacation request. 

Many parents will wait to firm up holiday plans until mid October or later. And in the litigation world, that is not likely to produce a resulting decision before the holidays have come and gone. 

Hearings are typically scheduled six to eight weeks out from the date the moving papers are filed, so a mid October filing gets you heard early to mid December — so Thanksgiving has already come and gone, as have any deals on travel plans around the December holidays. 

When you add into that mix the inherent delays — like mandatory custody mediation prior to the hearing, and vacation plans that the judges and attorneys themselves make, among other things — we are still dealing with the backlog of cases that have piled up with court closures due to the COVID pandemic. That backlog will continue to be problematic for many months to come, in all likelihood.

So what to do? The most pragmatic response is that you should be discussing your holiday plans with your co-parent now. In the heat of August. As classes roll back into session for the new school year. 

Identify the pressure points with regard to planning, and if necessary get your motions for holiday parenting plans on file right away. You may, of course, still be dealing with these issues come mid-November (see the above listed court delays), which is both panic-inducing and not particularly helpful to the overall co-parenting dynamic. But you do have other options.

Option One – Arbitrate the Issue

If the two of you as parents can identify someone you trust to work as your arbitrator (doesn’t have to be an attorney, but it certainly could be), you can engage that person to help you reach agreements. And if agreements cannot be reached, your arbitrator can make the determination as to what the holiday plan will be. This approach has some distinct advantages. First, it’s likely the quickest way to get the issue resolved. You can meet as soon as the arbitrator is ready to meet, and this is not such a sophisticated issue that it would take more than a couple of hours to fully present your respective positions. The arbitrator could theoretically issue the decision (called the “award”) same day, or soon thereafter. It may also be the least expensive method because it is so efficient.

Option Two – Mediate the Issue

You may have worked with a mediator before, and agreeing to meet that person again on this limited issue makes some sense. Or you could find a new mediator all together. Unlike arbitration, mediation takes place within the confines of the existing court case, so you will likely need to file something with the court that you have agreed to further mediation on the holiday plan issues, and may need to set a hearing date for after the mediation is concluded. Mediation is not binding, though, which means that either parent could object to the mediation recommendation (assuming a full agreement is not reached), and that means that a trial must be convened. That trial is unlikely to occur before the holidays are well over.

Option Three – Roll the Dice

If you believe that you and your co-parent will eventually come to terms, you could simply initiate a discussion (which I would still recommend to happen as soon as possible) and hope that you can come to terms. 

But the closer we get to the holidays, in my experience, the less likely it is for a mutually agreeable compromise to be reached. And the later it goes into the final months of the year, the more likely that plans will need to be changed at the last minute. But if you have a good relationship with your co-parent, this option may be the best one of the bunch, despite its drawbacks.

Regardless of the approach you decide to take, you should be thinking about those visitation plans now, even though they are months away. The holidays will be here before you know it, and everyone — especially the kids — deserves to have a peaceful holiday experience with family and friends untroubled by last second changes and stressful conflict, pandemic conditions aside.

Attorney NEIL FORESTER is the owner of FORESTER FAMILY LAW PC, a remote-first ADR practice. Amid COVID-19 conditions, he prioritizes out-of-court alternatives to traditional litigation for divorce and parenting disputes. Neil is a California bar-certified Family Law Specialist and a Fellow in the American Academy of Matrimonial Lawyers. He provides second opinions and trial strategy consulting, as well as prenups, adoptions, cohabitation agreements, domestic partnerships, and pet parenting plans. Learn more at foresterfamilylaw.com and follow @nmeforester on Twitter. 

This information is general in nature and should not be construed as legal advice.