Jimmy Stewart’s angel made it quite clear that no man that has friends is a failure. Bing Crosby and Danny Kay got the girls, the snow and reunited all their chums from WWII in White Christmas. Even the Griswald’s had Cousin Eddie. The point is that Holidays are made for family and friends. When your family setting is less than movie perfect, it can be difficult to enjoy or even tolerate this normally joyous occasion. Each year during the holidays we see an influx of individuals that are for one reason or another unable to spend as much time as they would like with their children because of either a previously created parenting plan, or a pending divorce.
On a personal note, I will say that as a younger attorney (who still to this day enjoys a close bond with his family) I often fell victim to my my sentimental side and did my clients a huge disadvantage. I would run into Court and file an emergency petition for visitation, stating that irreparable harm would occur if my clients didn’t get to see the children immediately. In most cases, all i would do is harm my reputation and give my clients unrealistic expectations. A Judge reminded me some years ago that nowhere in our laws does the term Emergency Petition appear. The Court will hear them if we use those terms, but to ask a Court to make a determination on where a child should wake up Christmas mourn without giving the other party, who in most cases has the child, an opportunity to defend their position, the result is generally the same. The Court will set the matter for a hearing in the next month or two.
The point is this, the ability or lack thereof to see ones children during the holidays is not considered by the Courts to be an emergency. That is not to say that it is not important to the Court, it is just not urgent enough to change custody without proper notice and a hearing. In order to compound this problem further, most Courts shut down during the holiday season. As an Attorney, it is difficult to file a petition seeking immediate relieve when the Judge is not present. It is possible, to have an alternative Judge hear our request to take custody away from a parent without giving the other side an opportunity to be heard on a case that is not in his Courtroom and he has no past knowledge of, but the odds are not good.
So before you come into the office and ask us to file an emergency petition, make sure it is an emergency. In order to qualify as such their will need to be a substantial chance of irreparable harm occurring to the child should the Court not intervene. In most cases, missing presents on Christmas mourn will not suffice. The sentimental side of me would disagree, but the side that knows the law must regretfully inform you that it just doesn’t.