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This question is in regards to holidays under family law. We…

This question is in regards...
This question is in regards ***** ***** under family law. We have a signed marital settlement agreement stating that responded gets Thanksgiving on EVEN numbered years (we split the holiday but on the even number years responded would have them on Thanksgiving day). But back in 2015, we decided to switch off and each take the entire full week of Thanksgiving instead of splitting it so we could alternate and get the children for an entire week on the Thanksgiving holiday. Respondent decided to take that first year of taking The children for the entire week. I took the children for Thanksgiving for the entire week in 2016. She took the children in 2017. This year being 2018, is an even number year but because we made the switch, it is supposed to be my year with the kids. She is now stating that she wants to revert back to the original MSA and since even number years if her year with the children on Thanksgiving, she wants to take them this year in 2018 even though she had them last year in 2017.My question is this. We do have a written agreement where she states she will start taking them the full week in 2015 and that we would alternate years but does the marital settlement agreement supersede the written agreement that we came up with after the marital settlement agreement was signed? Or can I treat The email agreement of her taking the odd-numbered years as a new written agreement and base it off of that?
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Answered in 33 minutes by:
3/21/2018
Jessica B
Category: Family Law
Satisfied Customers: 1,672
Experience: Attorney at Donald B. Linsky & Associates, PA
Verified

Hello. My name is ***** ***** I am a licensed attorney. I hope I may be of assistance with your question. Please remember to rate my service at the end of this session. Thank you!

Since the written agreement was not codified by a court order, the current child custody order is the governing document. What you need to do is file a Motion for Modification and attach the written agreement to the Motion.

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Sue
Sue, Family Law Attorney
Category: Family Law
Satisfied Customers: 571
Experience: Family Law litigator for over 35 years
Verified

Hello, good to hear from you again.

My answer is somewhat different from Jessica's: Often the terms of a Marital Settlement Agreement include a provision that the visitation shall be as stated therein OR as decided mutually by the parties.

If you do feel the need to go back to court, this should be an easy case to make: you have the emails you can use as exhibits, and there's lots of time to sort this out.

Another thought is to counter-offer to give yourself a full week some other time of the year.

What do you think about that option?

Sue

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I have to go off-line for a while.

I'll check back in with you soon.

Thanks for requesting me.

Sue

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Customer reply replied 4 months ago
Unfortunately, I looked and it doesn’t say in the terms of a The Marital Settlement Agreement that visitation shall be as stated therein OR as decided mutually by the parties.
Customer reply replied 4 months ago
We are going to back to court to modify support next month so I can bring it up then if it becomes an issue but I wanted to know what the judge would most likely lean towards. Go back to the court ordered agreement or the new agreement we made and have been following the last 3 years.

Most likely the Judge will order you to follow the new agreement that's been working for the last 3 years.

I do have a suggestion: It will serve to avoid surprising the Judge with an unrelated conflict if you file a motion asking the Court to order the new agreement remain in place.

Are you comfortable using the court forms in your jurisdiction to do that?

You might also ask to amend the Marital Settlement Agreement (or include in the language of the order from next month's hearing) that the visitation schedule can be modified "as mutually agreed."

Judges like to give parties leeway to make the circumstances of their lives, and the children's lives work for them.

Does that answer your questions to your satisfaction?

If you have other questions, please let me know.

Sue

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Customer reply replied 3 months ago
We're going back to court for child support modification and clarification on Transportation in April. When you are suggesting to file another motion to to keep the new agreement in place, what form do I use? And or can I request it to the judge when we see him in April?

You can take a chance on making what amounts to an oral motion at the hearing in April. The Judge may hear it.

It's a better strategy to file a written motion to let the Judge know you've got a different issue you'd like help settling. The motion will have to be served on the other party or her attorney if she's represented prior to the hearing, of course.

As a strategic move, you could tell your ex you're planning to file a motion if the two of you can't amicably resolve the Thanksgiving holiday sharing schedule. That might motivate her to resolve this issue without having to bring it up in Court.

If you let me know/remind me of your city, county and State, I can look to see if your jurisdiction makes post-Decree motion forms available on-line or has a Self-Help Center.

Sue

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Customer reply replied 3 months ago
Long Beach, CA. We do have a self help center at the long beach court house. If you can check about the post decree motion forms, whatever that means, that would be fantastic! Clueless but willing to put forth the effort! Thank you so much Sue!

Long Beach is so user-friendly - here is the form you'll need to request the current Thanksgiving visitation remain as is, and here is an excellent Information Sheet re: Request for Order that I expect will be helpful.

Why don't you look both over and let me know what other questions arise.

If none. complete the Request for Order and any other necessary forms as indicated in the Information Sheet, make at least 3 copies, 1 staple in the upper left corner of the original and each copy, and take them down to your Self-Help Center to ask if they'll check whether you've filed them out correctly and brought all the right forms. Then, file, and serve.

Sue

Sue
Sue, Family Law Attorney
Category: Family Law
Satisfied Customers: 571
Experience: Family Law litigator for over 35 years
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Customer reply replied 3 months ago
Thank you!!!!!
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