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Custody orders were made when children were infants-- years later, can vacation time be ordered?

Your Question:
I have two boys ages 3 and 4,when their mother and I divorced they were 7 months and 19 months old. We have joint custody with her being the CP. I have pretty standard visitation of EOW and T and TH nights from 5:00 to 8:00pm. In the original agreement there was nothing about vacation time in the summer or right of first refusal. Now that the boys are a little older I am wanting to get in writing a summer vacation schedule and have been aware, for a while, that they spend several nights a month with their grandmother. I have asked for and offered to take the boys anytime their mom needs a break and have been refused each time. She is only willing to let me have them the exact set hours of the agreement. I have read that in order to change visitation there has to be a significant change in circumstance, does their age qualify? I can understand not wanting a baby going with their dad for 2 weeks at a time but what about older kids?

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My Answer:

I'm not sure of the state in which you reside, but in California, there is a distinction between changing custody and modifying a parenting plan. Changing custody requires a significant change of circumstance.

However, modifying a parenting plan does not require that threshhold. You can go back and seek new orders in a parenting plan at any time, and the court will theoretically rule in the children's best interest.

I think you have a reasonable argument to establish terms for vacation. It's standard in most parenting plans, and you simply need to outline that at the time of the original orders, it was not in the very young kids' best interest to go two weeks without seeing a parent. However, their age is now such that orders on vacation are appropriate.

So, because the mom is such a witch with court orders, you need to make sure that the vacation orders you request are very clear and not open to subjective interpretation.

An example of bad orders was my own first vacation clause. It specified that the parenting wishing to exercise vacation will give 30 days' notice of exercising vacation to the other parent, and the vacation will occur, barring a schedule conflict voiced by the other parent. So my ex realized pretty quickly that all she had to do was continually advise me that she has schedule conflicts, and I couldn't exercise vacation.

Another example of bad orders was my second vacation clause (I've learned lots!). It specified that total vacation time is X days for each parent. My ex figured out that because it said TOTAL vacation time, she decided she only had to use the exact number of vacation hours needed to cover my custodial time. So even if she wanted a week's vacation, she'd only specify her "vacation time" as something like 38 hours (i.e., dissecting it to cover my custodial time).... such tactic would have given her several months of vacation.

My current orders on vacation are finally pretty tight. They specify that each parent has a two week UNINTERRUPTED PERIOD of vacation, for a maximum of a 14 days including regular custodial time. They specify that in odd years, my ex picks her vacation period first and must notify me by April 15, and I notify her of mine by June 1. In even years, it's reversed.

Even tighter orders would be to outline that your vacation with the kids would be July 1 at 9AM to July 15 at 9AM and mom's vacation would be July 15 at 9AM to July 29 at 9AM.

On right of first refusal, you know your ex won't ever comply with it, so it's probably not worth pursuing. If she was leaving the kids with random teenage babysitters every day, you'd have a decent "best interest" argument. But giving them quality time with grandma is arguably in the kids' best interest. I think you'd look potentially look bad if you tried to force your ex to give you first shot at the kids during what the mother has planned as grandma time.

Final thought is that if you don't have orders on how holidays work, it'd make sense get specific orders on alternating holidays (i.e., including start/end time for each holiday) at the same time you bring vacation before the court.

Good luck.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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