Texas Family Law Podcast Episode #19: How Do Divorced Parents Split the Holidays?


This week your hosts Jake Gilbreath & Brian Walters discuss the timely topic of how holidays are typically handled between separated parents. Listen as they explain what you can expect your holiday season to look like and the options you'll typically have for celebrating the holiday season.

The Texas Family Law Podcast is available for download on Apple Podcasts, as well as on SoundCloud and Spotify. Don't feel like listening to it? The entire transcript is available below.

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Podcast Episode #19: Handling Holidays in a Divorced Household

Jake: This week because of the holiday season we figured we'd take on a relatively simple question of how holidays are typically handled between two divorced households or separate households.

On our previous podcasts we’ve talked a lot about the standard possession order which is set forth in the family code. So Brian, talk to us about how do you explain the standard possession order and how holidays are managed.

Brian: There's two different schedules. One is if you live within a hundred miles of the other parent, which most people do, and then there's one if you live more than a hundred miles apart. I’m going to first cover the rules for if you live within one hundred miles of each other, and it's almost Thanksgiving so I'll start with that.

That alternates year to year, so one parent will have the whole Thanksgiving period from the time school gets out. Usually, these days that's the Friday before Thanksgiving. Sometimes schools go a little bit longer, but generally that's what it is now until the Sunday after Thanksgiving. It’s a real long piece of time. It's about nine days that one parent gets entirely, and then that'll alternate the next year.

Then as Christmas rolls around, they split that into two. So, the parent that did not get Thanksgiving is going to get Christmas. They're going to get the first half of it from the time school gets out. That varies between a week to three days before Christmas, all the way until the 28th. And that's the dividing point on the 28th of December, then the other parent gets from the 28th till school resumed, which of course, again, varies greatly depending on where new year's falls.

Then as you roll into spring, their spring break is very similar to Thanksgiving. It's the Friday before spring break all the way until the following Sunday, so about nine days. Those are the big three holidays.

If you're over a hundred miles away, the parent who's does not have custody gets both or gets spring break every year and everything else stays the same. That's just a little bonus for them being further away.

So that's what the standard possession order says. It doesn't cover other major holidays that might be important to people, but that's the basic outline of it.

Jake: Yeah, I think that's right. It’s important to be careful on spring break because technically speaking spring breaks plugged under a different section in the family code, so be really clear about what you're doing for the holidays. Of course there's also Mother’s Day and Father’s Day. The order reads the same as far as Mother’s Day weekend and Father’s Day weekend and the child's birthday.

Practically speaking, like you were saying Brian, it's different. If I’m in Detroit and my child is in Austin, am I going to be able to see my child on their birthday?

There’s a practical aspect of it for sure, but we do talk about childbirth days. We talk about Mother’s Day weekend, of Father’s Day weekend, Thanksgiving, Christmas, obviously the big ones like you were saying and that is what's in standard possession order.

We get a lot of questions sometimes like what about Halloween? What about Easter? 4th of July is a big one for people too, I think. And tell me if you have a different experience, Brian, most judges I've been in front of say “y'all can agree to that if you want, otherwise, it's just going to fall where it falls.”

For whatever reason, the state legislature has not changed the family code and the standard possession order for those holidays. It's not uncommon that some parents decide to outline those holidays, particularly Easter and Halloween since those are really fun times with kids and parents sometimes want to do that, but that needs to be done by agreement.

I haven't seen a judge ever make specific orders for Halloween or 4th of July or anything like that. Have you, Brian?

Brian: No, I've seen the occasional religious holiday and Easter is one of those holidays where it is at its core a religious holiday, but it's become like Christmas in that it has become a very secular holiday too.

For example, the Jewish holidays or the Islamic holidays, if that's important to a parent and especially if the other parent is not of the same faith, I've seen courts sometimes allow those, but also most of the time people agree on those things. That’s the one exception that I've seen and is, as a practical matter, your Halloween is not 50/50 in the standard possession order, but both parents are going to get a lot of Halloween anyways because that’s just the way that the days fall, and the times fall.

Jake: Yeah. And it's important to remember you can always do anything by agreement and people do. I've had couples come in and sometimes even my client will say “Christmas just isn't a thing in my family that we spend a bunch of time on, we do presents, but it's just not a big deal. And man, Christmas is just the biggest thing in the world for her family. But, Thanksgiving's really my family's deal.” I've seen people agree that maybe dad gets every single Thanksgiving and mom gets every single Christmas. Yeah, we can certainly do that.

I do try to get people when they think about holidays to think about not just the upcoming holiday, but what it looks like five years from now, 10 years from now. It's really easy when you're going through a divorce to think about the immediate future, but what you really need to be thinking about too is, what's my life look like in five years from a divorce?

Statistically most of our clients get remarried, or if not remarried then they’re in a significant relationship. If you're in a significant relationship with somebody with kids, the likelihood is that individual is going to have a holiday schedule with his or her ex, and that holiday schedule is likely to be on a standard possession order. I will see judges try really hard to link up the holidays for blended families and everything makes sense a lot of the times to make sure that everybody's at Christmas for one household and Thanksgiving for the other household. And so, I'll see them change it up sometimes just to make it work. A lot of people do it by agreement, change of their schedules to make sure everybody's in sync. Judges will try to make it sync up as much as they can.

The other thing I commonly see, particularly with younger kids, is parents come to us and say, “I want to split every single Christmas with my ex. We want Christmas days split down the middle. We want Thanksgiving split down the middle. We do presents at both houses.” 

That type of stuff and I get that. That's really well-intentioned and some people do that. I don't know about you Brian, but the advice I used to get people, is to stick to the standard possession order. I try to tell them, you have to understand, five years from now you may be remarried and let's say you're remarried, and your new spouse has family in Boston. If you split Christmas day, you will never have Christmas with your new spouse's parents in Boston. But if you have a standard possession, then you can actually do that.

People need to remember that with possession schedules you can always do whatever by agreement, every single possession schedule in the state of Texas says that parents can do whatever they want by agreement. Absent agreement, here's the schedule. So, I usually tell people to follow that standard possession order because, again, we can work around it if you want, but my sort of default advice is following the standard possession order.

You're probably going to be in a relationship with somebody who has a standard possession order moving forward, and then hopefully the two of y'all you and your ex can just do anything by agreement. But that's, that's me. What do you tell clients?

Brian: I agree. And sure enough twice in the past two weeks I've negotiated settlements that had split Christmases and for exactly the reason, you know exactly the motivations you talked about, and if that's what they think is best after they've been given the pros and cons of it, that's fine. Hopefully that will work out well for everybody, but the future is hard to tell. The more I've done this standard possession order over the years, the wiser I think it is. It's been tweaked and modified and improved over the past 50 years almost and there are very little problems with it.

And I've found that a lot of times when you start tweaking it around the edges, there's unforeseen consequences. Some conflict that nobody thought about that occurs six years from now when you know, something falls on a weird day that may conflict with a different part of the order that wouldn't be that way in the standard possession order. Then I get a phone call saying, what do I do here? We all scratch our heads because it's not exactly clear, so yeah, you hope that doesn't happen. If you stick with the standard possession order, you're really not going to have that problem.

Jake: Yeah, like you said, every single family is different. I have people that I check in with them four or five years later, we're still splitting Christmas. Sometimes they work out just fine and sometimes it doesn't. But and then I guess the last thing we can say about holidays is, you can do a standard schedule different than a standard possession order and still use standard possession holiday.

Sometimes you see people do a week on and a week off, but a real common one is a two to five wrap, but then we still address it typically even for during a 50/50 schedule, by saying let's do holidays per standard possession order.

Let's do spring break per standard possession order and usually do something different for summer too. Just because you don't have a standard process or it doesn't mean that you can't do standard possession or holidays, because essentially it is a way to split holidays evenly between the two households.

So, it's important. it's really important to our clients. It’s trying to do what makes sense for both households, it's fair for both households, and of course whatever's best for the kids is, is always what a judge is going to be trying to do. Okay. So, I think that about wraps it up for this topic.

Brian: I agree. Hope everyone out there has happy holidays and we'll be back soon with another episode.

Jake: All right. Y'all take care.

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