As if Christmas wasn’t complicated enough – the gifts, the decorations, the food, the parties, the hangovers – there is an added, and potentially trickier, consideration for separated parents.  Where, and with which parent, do your children spend the festive period, especially Christmas Eve and Day?  This is an issue that has had the attention of family lawyers, and the courts, time and time again.  Christmas is a special time for families, and for younger family members it has extra significance.  Many families are able to agree what should happen without legal advice, but many are not.  So if legal intervention is necessary, what are the considerations?

Parents often fall into the trap of wanting to look at what is fair in terms of a sharing of time between them – but that is not the principle that the law says should be applied.  The over-arching principle is that whatever arrangements are made for a child – including over Christmas – must operate in the best interests of the child.  If you think about it, it is understandable that the law should look at it that way as opposed to form the angle of fairness.  The legal principle does not always provide an easy answer.   In practice, there can be many competing factors that make it very difficult to assess what is best for a child.  Here are my five tips for successful Christmas arrangements for separated families:-

1. Start communication about Christmas plans early in the year. Even if you have an arrangement that you have agreed should operate year on year, don’t make assumptions.  Families consist of a number of individuals, possibly from other parts of the country/world, and all of whom may have an agenda for “the big day”.  Families can also change year on year, and changes in a family dynamic may prompt a need to reconsider a pre-existing arrangement.
2. The age of your children cannot be ignored; if your children are not on the naughty list and are expecting their annual visit from Mr Claus, parents should anticipate that the children might be confused or worried that they miss out if they are not in their main home overnight on Christmas Eve. As they become older, and their expectations change, organising a sleepover on Christmas Eve at the non-resident parent’s home makes more sense, and if it alternates between parents every year, the kids then experience Christmas with both families.
3. Collaborate on Christmas gifts for the children, and consult each other about expectations and spending budgets. You don’t want to each buy the same gift.  Perhaps more importantly, the ability of one parent to afford more expensive and appealing gifts when compared to the other can cause resentment and foster bad-feeling that can simmer on well into the New Year and beyond.  The failure by one parent to assist in practical terms may breed unhappiness too.  Discussing how you approach the presents will help avoid any such problem arising.
4. If you think children should spend time with both sets of parents in their respective homes on Christmas Day itself, ask yourself who really benefits from that, and the possible effects on both families if a special occasion is interrupted or delayed by the uplift or collection of children. How will the kids feel about having to leave one home to go to another, half way through a family celebration?  Think instead about celebrating the season, not the day.  There are plenty of opportunities for get-togethers with friends and family over the holiday period.
5. How is your relationship with your ex? Think about inviting the other parent to spend Christmas with you and the children.  And don’t automatically exclude any new family members or partners that have emerged since the relationship breakdown.  The concept of “the blended family” is normal in other parts of the world (USA/Australia), largely because it is recognised that children of separated parents don’t want conflict and acrimony – just for everyone to get along.  It is, after all, only one day out of a whole year.

If your attempts at organising Christmas is proving a worry, our experienced family law team can navigate you through this thorny issue.

Gareth Masson, Partner
Accredited specialist in Child Law & Family Law by the Law Society of Scotland
Family Law
Blackadders LLP
@FamilyLawGareth
www.blackadders.co.uk