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  1. #1
    Join Date
    Aug 2011
    Posts
    2

    Default Scheduling Vacation

    My question involves a child custody case from the State of: Virginia

    A bit of a back story..I have raised my female cousin's child since birth. She has never lived with the child or supported the child financially..etc. The birth mother has never had any real involvement in the child's life as far as seeing the child and the birth father is married with children and has never even met the child. She is 4 1/2 now.

    In April of 2011 I was awarded sole legal and physical custody of the child. The birth mother appealed and then revoked her appeal.

    The custody order states:

    It is ordered that sole legal and physical custody of the child is awarded to ME. Visitation for the mother with the child shall be as follows:

    1. Every other weekend from Friday at 6:00PM to Sunday at 6:00PM.
    2. Every other Tuesday evening from 6:00PM to Wednesday at 6:00PM.
    3. Alternating holiday schedule.
    4. The mother to pick child up at the beginning of visitation and ME to pick up the child at the end of visitation.
    5. The mother to have telephone contact with the child two times per week.

    The mother may also have a vacation visitation with the child for one week during the summer with reasonable notice to ME.


    That is all it says, though I wish it were more detailed. -sigh-


    So here is the question I am facing now...

    All was going relatively well with the visitation. The weekend of August 6th was the birth mother's weekend. I had asked her well in advance if she minded starting her weekend Thursday night instead of Friday night and ending Saturday evening instead of Sunday so that the child would be able to attend a birthday party on Sunday. She agreed but asked in turn if she could get the child Wednesday evening for her weekly visitation instead of Tuesday evening and keep her until Saturday so that she wouldn't have to travel so much that week. I agreed. I also brought up to her at this time the fact that I would be taking a vacation with the child the end of September but I wasn't quite sure of the dates but I would let her know as soon as possible. She told me that it was no issue. We hadn't been strict with visitation at all..if she or I had wanted to switch days it hadn't been an issue with either party.

    When the birth mother arrived to pick the child up Wednesday evening I confronted her with some things that concerned me about the child and things she was being told while in the mother's care. This obviously made her mad. She then informed me that I could not pick up the child until Sunday at 6:00, to which I responded that that was fine but in turn she would not be taking the child that Wednesday evening since it wasn't her scheduled visitation and that she could come back Friday at 6:00PM. She told me that I couldn't do that since she hadn't had her weekly visitation at this point and proceeded to call the cops.

    A deputy arrived shortly after and I explained the situation to him. Since the child had been looking forward to the birthday party I told him that I was willing to still allow her to go that day as long as I could pick her up Saturday. He explained to the birth mother that the custody order stated her visitation days and that Wedneday wasn't one of them but that I was willing to let her take the child as long as she was willing to stick to the original agreement. She agreed and took the child that evening and I picked her up Saturday at 6:00PM. Since this happened the birth mother has been less than cooperative and not very polite.

    Today, 8/24/11, I called the court house and talked to a juvenile clerk. I explained to her that I had custody of a child and what my court order stated. I told her that I had planned to take a vacation in September and now knew the dates and had offered the other party to either exercise any missed visitation the week prior to or the week following my vacation. I asked if it was best to fax something into the courthouse stating all of this just in case there was a problem later, she said yes. So I faxed a paper in and then contacted the birth mother with the dates. Once given the dates she said that she was not okay with it and in fact would like to now exercise her one week of vacation for the same week. She is only doing this to be spiteful as this is the first I've heard about a vacation. Plus, per the custody order the vacation week that she is to have available to her is supposed to be during the summer.

    I already have flights, rental car and Disney tickets purchased. The custody order makes no note of me having vacation time with the child, but I would assume it would be the same as her. I told the birth mother that I have already talked to the courthouse and faxed in paperwork stating that she has been informed to which she replied that she will be contacting the courthouse to tell them she doesn't agree with it.

    I would like any advise on this possible.

    Thanks in advance for any help. =)

  2. #2
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Scheduling Vacation

    Summer can include September unless it's specifically defined otherwise.

    I know your issue was discussed elsewhere; my take on this though is that given the actual wording of your order, Mom's vacation time trumps yours. Even if she's only doing this out of spite. Your order makes no provision for your vacation trumping Mom's time, or anything else - so we should not assume that your vacation rights are the same as Mom's. Her's are spelled out specifically - yours are not.

    I'm not sure why the clerk told you to do what you did; for one thing the clerk isn't allowed to give you legal advice and for another your fax would be considered an ex parte communication and would be essentially meaningless to your custody issue. In order for it to be relevant, a motion would need to be filed.

    As this isn't an emergency, I can't see any grounds for filing anything. THIS year at least. For next year, though? Absolutely - get the order clarified.

  3. #3
    Join Date
    Aug 2011
    Posts
    2

    Default Re: Scheduling Vacation

    The dates she now wants to utilize her vacation are my exact vacation dates, September 26 - October 4. I do not think that that constitutes summer?

    I don't see how it is expected that she gets vacation and I, the person they gave sole legal and physical custody to, am to go without. Because of her rotating weekly vacation it would make it impossible for me to get a week of vacation that did not interrupt her visitation.

    Ugg, it's all just so frustrating. She agreed to the vacation when first told about it. I suppose I should have gotten something in writing at that point.

    I do have another question though. If I show that she did agree to the vacation (I have proof via text messages from her) and that she was informed and offered the make up of her visitation and I decide to go on this vacation anyway what can be done about it?

  4. #4
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Scheduling Vacation

    I think you misunderstood a little bit - sorry!

    Ok. Her full week of vacation would - given the wording, the way I'm reading it - trump YOUR week of vacation if scheduled the same week.

    However, outside of that, the usual "Custodian's vacation trumps NCP's regular parenting time" (as discussed on the other forum) would come into play. In other words, you'd be able to schedule your vacation at any point that doesn't conflict with Mom's vacation week.

    Make more sense?

    I'd go back to court though and have it spelled out - Mom must let you know by April 30 (that's a very popular date) each year when she intends to take her week. That way, if she doesn't? She can't complain if you schedule something yourself.

    And although you would technically be infringing on Mom's time if you go ahead in September and go on vacation with kiddo, even if Mom tries to push the issue one incident isn't going to lose you custody. At worst, you'd be ordered to give her makeup time...and since you've already attempted to that, I can't honestly see it being much of an issue.

    So yes you're taking Mom's time, more or less. But given your situation I can't see you being heavily penalized for it.

  5. #5
    Join Date
    Jul 2011
    Posts
    244

    Default Re: Scheduling Vacation

    My daughter's order only contained vacation for the other parent. The way the regular parenting time fell, she could not take a vacation either without taking away his time. He said vacation was only for him, and she could not take his time. So she did have to file and get the order spelt out.

    But it is as Dogmatique said, CP's vacation trumps NCP's regular parenting time. But NCP's vacation time trumps CP's vacation time. In other words NCP gets first choice. As already suggested here or in your thread on the other site(I read that to), you should have added that vacation time be decided by a certain date. My daughter's is May 1st, each party needs to decide their vacation by then. My daughter just waits till he gives his to her on May 1st and then gives her's to him on May 2nd. Because in her order he gets first choice, the first couple times they both handed them to each other on May 1st, they both had the same weeks picked.

    Her's started exactly the same way as yours, he agreed to her vacation time. She bought plane tickets, hotel reservations and he changed his mind saying he wanted that time and she didn't get vacation, it was not in the order for her. So she filed, lucky in her court, you can get this stuff heard in 1-2 weeks after filing. She had emails that they did where he said it was fine, so she got the vacation time.

    But you have to keep in mind this was not in your state, nor in your court, they are all different. I'm not giving you legal advice, I am, giving you suggestions to see if you can get them into your order.

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