The Christmas song tells us ‘It’s the most wonderful time of the year’ – however, this is not necessarily the case for families with children, and who have separated or divorced.
For many of these families, the festive season can be the most stressful time of the year, leading to conflict and disagreement, when trying to agree who will ‘get the children’, and how the time should be split.
Sheriff Courts up and down the land spend much time in December determining where and with whom children should spend Christmas Eve, Christmas Day and Boxing Day.
Being apart at Christmas, whether through divorce or separation, can be an especially challenging time for parents and children.
It can be particularly heartbreaking for families who are facing their first Christmas apart and who are not yet familiar with any changed arrangements.
It is not easy therefore for separated couples to agree on what is in the best interests of their child when it comes to Christmas.
Where the child wakes up on Christmas Day is probably the main focus for many a separated parent. It is such an emotive time that it is easy for parents to put their own wishes ahead of what the child themselves might expect or want to happen. Is taking turns at having the child on Christmas morning in alternate years really what the child might wish?
The prospect of a Christmas Day handover is for some a dark cloud hanging over the big day.
Christmas Day is undoubtedly the magical day – however, it is always worth remembering that it is not the only day over the festive break.
Instead of portraying it as a sad and emotional Christmas Day for the children without both parents, it could be discussed with them in a positive light, in that they will in fact be having two Christmases, one with each parent and their respective extended families.
Very often the biggest problem for children is feeling torn between parents, making them feel anxious and creating feelings of guilt.
Of course, in having separate Christmases with both sides of the family, it may be tempting for each side to try to outdo the other, and to spoil the children as a consequence.
It may be important for parents to discuss presents with each other, and to set agreed budgets, to ensure a similar balance, and to avoid any friction.
Emotive language and criticism of each other’s families should be avoided. Children have the right to have a good and happy relationship with each parent.
It is also important to agree arrangements well in advance. Plans should be clear, and not open to misinterpretation. It can sometimes be helpful to agree such plans in writing, and not to change them unilaterally at short notice. Children benefit from certainty and clarity.
Of course, if parties feel that making such arrangements could be tricky, or impossible to agree, Family Law solicitors can assist in this area, just as they most likely did at the time of the break up.
For some, getting a resolution will involve having the Sheriff Court make a determination.
That is typically done at a Child Welfare Hearing, in which the parties and their respective solicitors attend in front of a sheriff. The sheriff then has to determine what orders, if any, to make. The focus of the sheriff is always to determine matters in the best interests of the child. Just because the child was with one parent on Christmas Day last year does not mean that it is in the child’s best interests to be with the other parent on Christmas Day this year. That may seem rather unfair to many a parent who has contact with, rather than residence of, their child.
Family lawyers may well be able to give parents an indication of what a court is likely to do when it comes to festive care arrangements.
Whatever the differences, it is most likely that both parents would agree that their focus should be on their children having the best of times, and feeling loved by both sets of parents and their extended families.
Ewan M Campbell is an associate at Russel + Aitken LLP