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My ex and I have had an informal agreement of him taking my…

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My ex and I...

My ex and I have had an informal agreement of him taking my son who is 7 for thanksgiving and I have him christmas and christmas eve. This year he is saying he isn't going to give him to me on xmas and xmas eve. I gave him Thanksgiving. Our court ordered custody plan is split the days of holidays. Taking shifts. For the past 6 years of my sons life I have always had Christmas. My specific question is what happens if I don't follow our order and go on the what has been in the past?

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state the court order was issued in?

Yes of course. I live in San Diego Califrona

Lawyer's Assistant: Have you talked to a lawyer yet?

Just a friend who is a lawyer but he does not specialize in divorce

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No not really

Submitted: 7 months ago.Category: Family Law
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Answered in 4 hours by:
12/13/2017
Family Lawyer: Lucy, Esq., Lawyer replied 7 months ago
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 32,264
Experience: Attorney with experience in family law.
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Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

It's possible that if you show up to take the child for Christmas Eve, the father may have taken the child elsewhere. Or he may refuse to give him to you or even call the police. There's no way for me to know how likely that is, because it depends a lot on his personality. Since you have a custody order providing for shared holidays, if you were able to pick up your son without incident and he sent police to your house, they are not likely to take him away. (But make sure you have the order handy, just in case.) Police don't have the authority to decide which parent is right in a custody dispute if the order isn't clear.

He could also an Order to Show Cause, asking the judge to find you in contempt for taking your son. However, the judge isn't likely to find contempt when the order says that you'll share holidays, and he already got Thanksgiving. There really isn't another big holiday in 2017 for you to "share," so by refusing to cooperate, he's the one actually in violation of the order. If he does take you to court, the judge may clarify how sharing should occur.

The other option is to go to court and file a Request for Order, asking the judge to modify the original court order so that it's explicit who gets the child on which holidays, or to set up some kind of swapping schedule, so you don't have to rely on an informal agreement anymore. That's not likely to be decided before Christmas, but it could help you avoid repeating this issue next year.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

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Customer reply replied 7 months ago
Hi I’m confused by the reply to my email. I have my son the weekend before Xmas and Xmas eve. Our custody order saiys spilt holidays but we have always done I get Xmas and Xmas eve and he gets thanksgiving. For the last four years. If I decide to not return him on Xmas eve what happens if my ex calls police
Family Lawyer: Lucy, Esq., Lawyer replied 7 months ago

I'm sorry. I didn't realize from your question that the children would already be with you.

As long as you have the court order showing that you share the children on holidays, police shouldn't do anything if you do not take them to their father's house. They can't choose how to interpret the order. It would be up to the father to take you to court for contempt.

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Customer reply replied 7 months ago
Even though it says my shift specifically for Xmas eve is 8 to 1 on custody order? Xmas day 8 to 1 also.If I keep him can they do anything? I did give him thanksgiving assuming I would get Xmas xmas eve
Family Lawyer: Lucy, Esq., Lawyer replied 7 months ago

I didn't realize that split custody included the hours each of you was supposed to have him. That's different.

If the order explicitly gives times, other than the ones you've been following, you'd need to have something in writing from the father. Police can only follow the language in the order.

You can file a Motion asking the judge to change the order to what you've been doing. You can also ask the judge to give you additional hours to offset what the father did with Thanksgiving. But if he does send police to your house after 1 pm on Christmas Eve or 1 pm on Christmas Day, they will probably take your son and give him to his father.

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Customer reply replied 7 months ago
Thank you. ***** were to go to hotel and not be home? Would that look bad in court ?
Family Lawyer: Lucy, Esq., Lawyer replied 7 months ago

That could make it look like you were intentionally refusing to follow the order.

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Family Lawyer: Lucy, Esq., Lawyer replied 7 months ago

Your informal agreement is a defense. It's up to the judge how much weight to put on that, though, especially if the father denies making it.

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Family Lawyer: Lucy, Esq., Lawyer replied 7 months ago

Do you have any other questions about this?

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