Ask Jonathan Breeden Anything: Custody during the Holidays

Jonathan Breeden: [00:00:00] Hello and welcome to another edition of The Best of Johnston County Podcast.

I’m your host, Jonathan Breeden, and on today’s episode, we’re having a special edition of The Best of Johnston County Podcast called Ask Jonathan Breeden Anything. Normally, we do podcasts where I, Jonathan Breeden, ask local community leaders, small business owners, and interesting people that I meet in and around Johnston County questions about why they love Johnston County and the services and businesses they provide to the citizens.

On the special edition podcast of The Best of Johnston County Podcast, our social media coordinator, Raena Burch, asked me, Jonathan Breeden, questions surrounding family law, which is what we primarily do here at the Breeden Law Office, our primary office here at 4042 Behind the Food Line. We also have an office on 3rd Street in Smithfield.

So anyway, so this is a special edition of the podcast. We’re going to talk a little bit about the holidays and custody during the holidays. I know the holidays have just passed but these are always very stressful times [00:01:00] in family law situations that we spend a lot of times talking about what’s best for kids during the holidays or what we think might be best.

And so you might find this interesting if you’ve ever been in that situation. But before we get to that, we’d like to Invite you to like, follow, subscribe to The Best of Johnston County Podcast, wherever you’re seeing it, whether it be on Apple, Spotify, LinkedIn, YouTube, TikTok, or any of the other social media channels, The Best of Johnston County Podcast, The Best of Johnston County Podcast comes out every single Monday and has now for over 15 months.

So be sure to check it back every Monday for new and exciting episodes of interesting people in Johnston County and go back and listen to some of the previous episodes with people like County Commissioner Butch Lawter, County Commissioner Patrick Harris State House Member Donna White. Soon to be, by the time this episode airs, Congressman Brad Knott, when he was running for office, these are all fascinating fascinating podcasts that you can learn a lot about these people and what is going on in Johnston County by listening.

And if you also do us the favor of giving us a five star review down at the bottom, wherever you’re seeing this podcast, that would be [00:02:00] great as well as it will help increase our visibility. So you’re ready, Raena?

Welcome to another episode of Best of Johnston County, brought to you by Breeden Law Office. Our host, Jonathan Breeden, an experienced family lawyer with a deep connection to the community, is ready to take you on a journey through the area that he has called home for over 20 years. Whether it’s a deep dive into the love locals have for the county or unraveling the complexities of family law, Best of Johnston County presents an authentic slice of this unique community.

Raena Burch: I’m ready if you’re ready.

Jonathan Breeden: All right, I’m ready. I will see what we are. Hopefully I will know the answers to these questions.

Raena Burch: I think you will.

Jonathan Breeden: I say that every time.

Raena Burch: You do that. All right. So the first question is how do you fairly divide time, custody time during the holidays?

Jonathan Breeden: You know, this is always it depends, right? It always depends. It’s a lot, always. Right, right. It depends. But as a general rule, parents will try to share the time somewhat equally during the holidays.

And, you know, and [00:03:00] now really the holidays that we focus on are Thanksgiving, Christmas, July 4th spring break. Mm-hmm . You know, I mean really those are the ones.

Jonathan Breeden: Easter usually falls, right? Easter is connected to spring break, almost always. Yeah. In Johnston and Wake and Hornet counties in North Carolina. so I mean, it is, you know, usually, even if it’s not a custody situation where it is 50 50, the holidays are often 50 50 in some way or fashion. And there’s a lot of different ways to split up the holidays, but if you’re going to court and you’re asking a judge to make a decision, they’re going to do their best to try to split the holidays equally.

Raena Burch: So when you say equally, are, do you mean the actual holiday itself? So like Memorial Day, they spend half of it with one half with the other, or do we, or we’re like. One gets Memorial Day weekend and one gets Labor Day weekend.

Jonathan Breeden: It’s more like that, right? Usually it’s the weekend. So with Labor Day, Memorial Day, [00:04:00] sometimes you see Martin Luther King Day, but mainly you see Memorial Day and Labor Day where the Monday is always going to be connected to the weekend.

They will say That the father gets Memorial Day weekend and even numbered years. And the mother gets in an odd numbered years. And if the father gets Memorial Day, you know, if he gets it in even number of years, then the mom is going to almost get Labor Day in even numbered years. So it ends up being similar.

And so, usually you’ll get the entire weekend. And so it’ll be from Friday at six to Monday at six. And holiday visitation supersedes any regular custodial visitation. So even if that would have been the mother’s weekend, if that happens to be the father’s holiday, that’s going to supersede and the father is going to get that weekend, which means sometimes even in a situation. One parent would get three straight weekends. As far as Christmas is concerned, you know, there’s a lot of different ways to divide Christmas for kids to go to [00:05:00] public school, they’re always going to get two whole weeks. Out of school, depending on when Christmas is, but they’re gonna get two weeks every time.

Sometimes like we just had Christmas in 2024 where Christmas falls in the middle of the week, you end up getting more than two weeks. You know, this time, because we’re not gonna go, you know, this year they got out. You know, that, that Friday before and then ending all the way back to January the 6th, you got two whole weeks.

Plus there’s, I guess there’s three weekends there. So, most judges are going to divide Christmas in a couple of different ways. Number one, the most common practice is they’ll say from the day school out till Christmas day at 2 PM or Christmas day or December 26th at noon, it will be with one parent.

And then the other parent gets the child from either December 25th at 2 PM. or December 26 at noon until the day before school resumes at 6 PM. So if you would have had that schedule for the 2024 Christmas that just passed, if you had the first half, you would have gotten a [00:06:00] much shorter period of time because school didn’t get out till Friday.

Christmas that year was on a Wednesday. You would have only had. Those five or six days. And then the parent with the back half would have gotten 10 or 11 days. You would have gotten all the way from Wednesday, the 25th to Monday, the six. Now that averages out when it’s all said and done, when you’re alternating it you know, as far as that’s concerned.

Particularly when you have small children, you’re doing Santa Claus, Christmas Eve and Christmas morning is important. And so what the court will do is, you know, if you and I were married, you would get the even, you would get the first half of Christmas at the even years. You would get the second half of Christmas in the odd years.

I would get the second half of Christmas in the even years and the first half of the odd years. Now that is the most common way to divide Christmas. If you have people in this area, we have a lot of people from other parts of the country. And their families are not here because it’s a very transient area here.

You will see parents agree and every once in a while you’ll see judges do [00:07:00] it where they’ll give one parent the entire break, the entire two weeks for an even year or the entire two weeks in an odd year. And that allows. People to travel long distances, either go out to Stacey family, go to Hawaii you know, something like that because the kids are out of school.

So you can have a, longer break that way.

Raena Burch: So those are the, you’re not, you’re not interrupting the holidays for the children and family members and whatnot to have to travel back.

Jonathan Breeden: Correct. The third way we see Christmas is in a 50, 50 scenario. Where you’re doing week on week off or you’re doing this sort of two to three Monday, Tuesday, mom, Wednesday, Thursday, dad, Friday, Saturday, Sunday, mom, Monday, Tuesday, dad, when it’s truly a 50 50, where there are fairly exchanges, sometimes Christmas is just Christmas Eve at 6PM. Christmas day at noon, Christmas day at noon to December 6, 26 at 6PM. And then it just goes back to whatever the regular schedule would have been. You know, particularly in true 50 [00:08:00] fifties where people who have family in the area, they’re not having to go very far. You could see that. You could see that as well.

Thanksgiving you know, every once in a while, you’ll see them divided up on Friday day school out in North Carolina. They don’t go to school on Wednesday. So it’s Tuesday to Friday. 3 p. m. And then the other parent would get Friday at 3 p. m. until Sunday at 6 p. m. or maybe until the children return to school on Monday.

Or you’ll see a parent get the entire Thanksgiving break from Tuesday at 6 p. m. because they always get out of school on Tuesday to Sunday at 6 p. m. as well. That tends to alternate even odd as well. Spring break, same thing you know, Every once in a while, you’ll see a judge divided in half, but the vast majority of the time, it’s from the day school gets out for the break till school returns.

It always includes an entire week and two weekends, so that’s a nine or ten day period for that parent. Once again, it allows the parent, if they want to take them on an extended trip out of town, Disney World. You can still go skiing in certain parts of the country. And [00:09:00] later in March, whenever it is, of course, that’s going to move around as Easter moves around, you know, Easter is connected to the first full moon after the, is it the equinox?

I’m bad at the equinoxes. It is the first full moon after whatever the equinox is. In February or March or whatever that is. I’m not good at meteorology, but so anyway, so that does move around as well. You know, we talked about Memorial Day and Labor Day. You see that sometimes you see King Day but not as often as you see Memorial Labor Day, just in custody orders.

That’s kind of what judges do, like the sort of their This is what, you know, this is kind of what they do. You know, in Wake County they have year round schools. So, you know, those kids, you know, yeah, everybody gets that two weeks of Christmas. I don’t care if you’re around or not, but some kids also then get the month of January, which is if you’re on track for you know, you wouldn’t then go back to after Martin Luther King day.

So, you know, that gets to be, you know, sometimes you have, this is what we’re [00:10:00] gonna do for Christmas and this is what we’re gonna do for track out. And that could be. All kinds of stuff. And you know, and often the judges often will take it and we can split that track out. That track out usually is about 24 days.

It’s three entire weeks. Got a couple weekends on the end and they’ll say, you know, sort of divided in half, usually on a Wednesday in the middle of it. One parent gets the first 10 or 12 days of it. Second parent, other parent gets the other 10 or 12 days of it. And so that’s kind of how track outs work in Wake County.

Raena Burch: And I will say in my experience, you know, cause, It’s, 50 50 week on week off if you have them for two out of the three weeks on one track out You’ll probably have them for one out of the three weeks on the next track out. So it all kind of Washes out it works itself out in the end. Anyway,

Jonathan Breeden: right, right.

So right but once again once again You know, the key thing is all families have traditions. Some may be more positive than others, but all families have traditions and children should be part of each family’s [00:11:00] traditions, whatever that is. And because the parents are divorced or they’re separated and they won’t be able to do it, maybe every year, you know, like some families, you know, my wife’s family does a really big thing on Christmas Eve.

And unfortunately, you know, we’ve not been able to go to that with, with small children. They live several States away. we will go on Christmas day or the day after Christmas. So, you know, we always, maybe you don’t always get to do Christmas Eve, but then we get to do it every other year.

Yeah. Because under all of these scenarios, you would get every other Christmas Eve, every other Christmas morning at a bare minimum. And so if your family’s thing is, Christmas Eve, then your children would be able to participate in that every other year or Christmas day lunch. I mean, every family has a different thing.

You know, some families eat Thanksgiving on Thanksgiving day. Some families eat Thanksgiving on Fridays, like everybody. It’s up to the individual families.

Raena Burch: Yeah. Yeah. And I will say as, as a parent who has that whole, like we do the whole break, like [00:12:00] you were talking about where, you know, if I have my kids for Christmas, I have them for the entire Christmas break.

But the way that, you know, we had worked it out was, okay, how, so we have Christmas break, Thanksgiving break, 4th of July, Labor Day, Memorial Day. New Year’s, Easter, all that. We took all of those holiday days, we added them up and split them in half and said, okay, how can we fit this so that we each have the same amount of holiday time with the kids each year, but without having to split up the actual holidays themselves.

So that actually worked out really, really well for us.

Jonathan Breeden: Well, cool, cool. That’s good. Yeah. So some people do that too, which is good. I mean, when you can work it out, it’s always better than going to ask a judge. You don’t know what a judge is going to do.

Jonathan Breeden: And the judge doesn’t really care what your family’s traditions are.

But if you can work it out, you know, maybe they can get there.

Raena Burch: Yeah, precisely. Okay, next one. So do grandparents or other families have visitation rights during the holidays?

Jonathan Breeden: They do not, unless they actually intervene into the custody case and a court [00:13:00] grants them specific visitation rights during the holidays.

So, as a general rule, grandparents in North Carolina are not entitled to visitation rights, but grandparents in North Carolina can file for full custody of a child if they can prove that one or both parents, that both parents are unfit and acting contrary to their protective rights as a parent. Or grandparents can actually file for visitation by intervening in an ongoing controversy between the two parents, which means the case is ongoing litigation.

They are battling it out. The grandparent can’t start a case for visitation. The grandparent can’t file a motion after the case has been settled and a permanent of custody order has been entered. But while they’re fighting it out, temporary custody up to permanent custody, a grandparent can file a motion to intervene into the case.

And if a judge grants their intervention in, the court could then award them some visitation around the holidays. As an intervener in the [00:14:00] case, but they’ve got to be in the case and, you know, have an attorney or not an attorney, but go to the hearings and, and show why they should be granted some visitation at all.

And usually there’ll be something around the holidays for that grandparent, if the judge believes that it’s in the best interest of the child and the judge believes that neither parent may, Share the child with the grandparent.

Raena Burch: Yeah. So just because, you know, maybe kids have been spending this particular holiday with their grandparents every year, and then the parents get divorced.

Doesn’t mean that the grandparents are entitled to still spend that holiday.

Jonathan Breeden: Correct. Correct.

Raena Burch: Got it.

Jonathan Breeden: But go back to the first question. You’re going to get every other. Of everything. Yes. So, that grandparent’s child can bring the children to whatever that event is at a minimum every other year.

Raena Burch: Yeah. So, okay.

Is child support affected during the holidays? If, you know, maybe one parent has the kids more than they normally would. No. Does that affect anything?

Jonathan Breeden: It does not. Child [00:15:00] support is owed all 12 months of the year regardless of where the children are staying. We did just recently have a judge. Go away from that, but that’s not what the law is.

The law is that you look at the child sports calculated about of the total number of overnights that each parent has in a year of 365 days. And it is determined based on that. And that amount of money is due on the first of every single month. Even in a month when you might have the child the entire month of July, particularly on a multi state visitation schedule where a child is going to be spending six weeks at a time with a parent.

And so, or at Christmas where you may get the whole two weeks because it is based on the total number of nights in a year, the child support is owed every single month, regardless of how much visitation that a parent has individually in it.

Raena Burch: Got it. Okay. So what happens if a parent violates the custody agreement during the holidays?

Jonathan Breeden: If a parent violates a custody order you know, now that we’ve talked many times [00:16:00] before, right? Right. An agreement A verbal agreement is not enforceable.

Raena Burch: Write it down.

Jonathan Breeden: Right, right. And get it signed by a judge.

Raena Burch: Yes.

Jonathan Breeden: So if you have a court order signed by a judge if you have a separation agreement and they violate the separation agreement, you have to sue them for breach of contract.

And while you’re at it, I would sue them for custody and custody court so I can get a custody order signed by a judge. If you have a court order, signed by a judge and a parent violates it during the holidays, you can file a motion to show cause against that parent for violating a valid court order and ask the court to order them to appear and show cause why they should not be held in contempt of court and placed in jail for violating the court’s order willfully.

And so, but no, that process is Two to six months. So if they violate it on December 23rd, you’re not going to get your kid back for December 25th. [00:17:00] Yeah, I think you’re just not that parent will probably at some point end up doing some time in jail In April or May of the next year by the time you get it heard But it doesn’t get your kid back.

December 25th. It’s not emergency custody of the child’s not immediate danger. The courts are closed right around the holidays. But I will tell you that if a court finds that somebody’s violated the order, not only will they put them in jail, they will give that parent who lost their visitation on the holidays, make up time in the future to make up for it.

Raena Burch: Oh, that’s good to know.

Jonathan Breeden: Most of the time every judge is different.

Raena Burch: Yes.

Have family law questions? Need guidance to navigate legal challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don’t have to face it alone.

Raena Burch: Okay. Last question. Is it okay to travel out of state during the holidays? I know we kind of already answered this, but [00:18:00] does it have to be in the custody order that you’re allowed to take your kids out of state?

Or is it kind of a given? How does that work?

Jonathan Breeden: I believe that traveling out of state with your child is a given and is only restricted if the order has restrictions on it. You know, the fear always is that you’re going to move a child out of state on a. You hope to be a permanent basis without the other client’s permission.

That’s where the whole OUTTA state thing and we have lots of emergency custody cases every year. Yeah. Where somebody has taken a child and I mean my office currently has one where the child has gone to Hawaii now twice. We went to Hawaii, got the child back. Now that parent has gone again to Hawaii with the child and we have to get the child back a second time. And that’s just unfortunate. So that’s always the fear is that somebody is going to move the child out of state to take the child away from the jurisdiction of the state and away from the other parent. And so that’s always the fear, but your normal [00:19:00] visitation, like you’re going to see grandma and grandma is in Pennsylvania, or you’re going to Myrtle beach to see the Christmas shows and the lights or wherever else people go to Myrtle beach.

That’s in South Carolina. not a big deal unless your order specifically addresses leaving the state and that, and it will address leaving the state. If there’s been a problem or there’s been a threat or you ran a text or you repeated problem, then you’ll see court start to put restrictions on leaving the state.

Some judges, as a matter of fact, we’ll just put in all of their orders that if you’re going to leave the state with the child, you give the other parent. At least two weeks notice and you tell them where the child be staying, a phone number where the child can be reached, and when the child be brought back into the state.

They’ll make you share plane tickets with the other parent, not for the other parent to revoke it just so the parent knows where the child’s going to be. You do see, you see that. But in 98 percent of the cases, routinely just taking your child to grandma’s or Myrtle Beach or whatever is not a big [00:20:00] deal.

And most orders don’t even really address it at all. Unless there’s been a problem in the past. And then you gotta do whatever the order says. Maybe the order says you can’t. Maybe the order says you have to have permission. Maybe the order says you have to give 30 days notice. I don’t know, but you gotta do what the order says.

But as a general rule, there is no prohibition on taking the child. out of the state in most custody orders. Sometimes there’s one, if you’re taking the kid out of the country, that you got to give them 30 days notice. If it’s a really high contest case, we’ve got some of those who holds the passport, how you get the passport, you know, those are the rare exceptions.

And so most of the time you can travel with your child where you want to go.

Raena Burch: And that’s otherwise stated.

Jonathan Breeden: Right. Basically that’s otherwise stated. And you’re not intending to move the child. Out of the state on a permanent basis and

Raena Burch: saying you’re, you know, I’m only taking them for the holidays and then you’re actually really right.

Jonathan Breeden: And I’ve been doing this almost 25 years. I’ve got a case in my head for every fact pattern we just talked about. Yeah, but those are rare, right? Like you do it long enough. You’re going to see the rarities. And [00:21:00] so,

Raena Burch: well, and when most parents can work it out between themselves. You know, they’re not coming here to for every little thing, but when it’s a big deal or a nuance or something like that That’s why you’re seeing a lot of we see a lot of those cases,

Jonathan Breeden: right?

we see right right and that’s yeah, right we we often see the Right. Right. Now the worst of it, right? why we need to pay us a bunch of money to represent you, you know, if, if it was going to be a normal thing, you know what I’m saying? but even those are even more outliers, even from some of the ones where there are going to be over the weekend, it’s going to be 50, 50, you know, that kind of stuff.

Most people are fine with their children traveling someplace. I mean, the odds that a parent is going to move some child permanently. Like, it’s just rare, right? People have jobs, they have houses, they have careers, they have friends, they have new spouses, all of that stuff. I mean, most people are pretty set where they are.

And if they, and if you want to move, if you’re listening and thinking, well, I would like to move to somewhere else and you have a court order, you need to get permission. And if you don’t have a court order, you need to go get a court order to give you permission to move. Don’t just move your kid across state [00:22:00] lines.

Without getting the permission of the court or the express written permission of the other parent because then that leads to an emergency custody case. And we’ve talked about that in the past and that’s not a good situation for anybody involved and nobody wants to be subject to an emergency custody case.

Raena Burch: No, no. Well that was all I had unless there was anything that you can think of off the top of your head that you would just suggest parents do when it comes to holidays and custody.

Jonathan Breeden: Communicate. Communicate.

Raena Burch: Yes.

Jonathan Breeden: Understanding. Share. Recognize that the other parent would like to spend the holidays with their child as well.

You know, recognize that other family that you may have been a part of for some period of time has traditions. Maybe you dislike those family members, but those are the traditions of the family. That is that child’s family whether you like those people or not. Communicate. Talk about what those are.

You know. Share you know, those kinds of things are always better. You know, I [00:23:00] just wrote a blog, you know, about Halloween in particular, trick or treating right for little kids. That’s a big deal. You know, like share the kids on, on October 31st is where the courts are going to put Halloween in a quarter order, you know, but, if you have the kid, there’s all these now trucker treats and all that other stuff, dress the kid up, take it to one of those, you know, we have sort of a Halloween season now.

Right. And so that’s, you know, I think that’s, You know, that’s important. And recognize that, yes, you know, Christmas Eve and Christmas Day are important. There’s no doubt about it, right? They’re important to me, they’re important to you, you know, but there are other days, right? The Christmas season goes the entire month of December.

And, you know, you could share special times and open presents and go do things, you know, if you don’t have Christmas Eve and Christmas morning and Christmas day that year, it’s not the end of the world. You could still do Christmas with your child just as you normally would. It just would be on a different day and the kid’s not going to care.

The kid’s going to be happy to be getting the presents and spending the time with the [00:24:00] family and making those traditions that all that stuff matters. and recognize that this child is half the other sides and it’s half the other side’s family. And that family and those traditions are just as important to that child, even though they may not be to you because you hate that family.

You know, are just as supportive of that child as the traditions that you have in your family. And I think making sure that children get to participate in all aspects and all traditions, I think is better.

Raena Burch: Yes, and like you said, communicate not only obviously with your co parent to coordinate things, but also, you know, recognize that your co parent misses their kids.

But your kids also miss your co parents, and let them communicate. So, you know, maybe set aside a certain time during Christmas Eve or Christmas Day for them to be able to call and have a conversation and say Merry Christmas. When they’re not with that parent for that holiday,

Jonathan Breeden: right?

Raena Burch: And just FaceTime. Here look at all these presents I got.

Jonathan Breeden: Yes, right Oh, yeah, we always FaceTime [00:25:00] with the grandparents, right? Like yeah, all the technology.

Raena Burch: So just I think it’s really important to Understand and kind of make room for that for them to be able to reach out to their co parent talk to them the other family members during the holidays when they’re not with them that year Right.

It’s just, I think it does everybody a world of good.

Jonathan Breeden: I don’t, I don’t disagree. Like I said, and you’re not winning any awards by keeping the child away from the other parent and not sharing the holidays with that parent. You’re just not. And if you’re in a contested case. And you’re doing that before the case gets, before you get a ruling, the judge is going to look down on you for that and may make a more, a different overall custody decision based on how you were acting towards that other parent before the court got involved.

So keep that in mind as well. So anyway. That’ll do it for this edition of The Best of Johnston County Podcast. A special edition to ask Jonathan Breeden anything where we talked about the [00:26:00] holidays and different ways to share the holidays and how important it is to communicate. As we asked you earlier, if you would be so kind to like follow and subscribe to this podcast, wherever you’re seeing it on Apple, Spotify, YouTube, Tik TOK, LinkedIn.

Instagram or any of the other best of The Best of Johnston County Podcast county social media pages So you’ll be aware of future episodes of The Best of Johnston County Podcast You’ll leave us a five star down review down at the bottom We would be greatly appreciative of that until next time i’m your host Jonathan Breeden

That’s the end of today’s episode of Best of Johnston County, a show brought to you by the trusted team at Breeden Law Office. We thank you for joining us today and we look forward to sharing more interesting facets of this community next week. Every story, every viewpoint adds another thread to the rich tapestry of Johnston County.

If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. [00:27:00] com.