The Twelve Days of Christmas

There are lots of ways to split it, but the ugly fact remains that just about all parents who celebrate the holiday want their children to wake up in their home on Christmas morning.
12/16/2011 02:01pm ET | Updated February 15, 2012
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Shoppers hurry by, red cheeked and purposeful. Salvation Army Santas jingle their bells in front of Macy's. Cookies arrive in offices from clients and vendors and are promptly eaten, accompanied by the obligatory groans about too many sweets. And for us family lawyers, the holiday season invariably brings a unique stress otherwise known as The Christmas Holiday Schedule.

No matter what the regular custody schedule is, whether parenting time is equally shared or the kids only see Dad every other Sunday, parents care about celebrating holidays with their children. They care a lot. And the vast majority of them -- including many Jews, Muslims and atheists I've represented -- really really care about Christmas. There are lots of ways to split it, but the ugly fact remains that just about all parents who celebrate the holiday want their children to wake up in their home on Christmas morning. The magic of the stockings, the tree, the shiny presents tied up in ribbons -- that capsule of fantasy and wonder so many of us carefully construct for our children on Christmas -- it's priceless. And chances are, if you feel strongly about it, so does the person you used to be married to.

So we slice and dice. Here's a common variation: in odd numbered years, Mom has Christmas Eve at noon through noon on Christmas Day, Dad has Christmas day at noon through noon on December 26. In even numbered years, it flips. Imperfect, but fair. But entire custody agreements, easily negotiated down to the last detail of the other 364 days of the year, have been known to fall apart over Christmas. Judges have been enlisted to decide whether a Christmas day transfer should take place at 12 or 2 p.m. Mom says she should always have the kids on Christmas Eve (and therefore Christmas morning) because she takes them to Mass and Dad won't. Dad says Mom must have just gotten religion - she never went to Mass when they were married. The variations on this theme are endless, and the intensity of emotion unwaveringly high.

Sometimes the same level of intensity spills over into the rest of the holiday. You might think I were exaggerating if I told you that I have had clients who fought tooth and nail over New Year's Eve, but I would not be. New Year's Eve! Remarkable, considering that if ever there were a day in the year when most parents go to extraordinary lengths to try to unload their kids, that's the one. Wouldn't you think, rationally, that might be the point where the discussion changes from "I get them!" to "you take them!" "No, you take them!" But it doesn't always. Guess it comes too closely on the heels of the Christmas frenzy.

Other holidays just don't cause the same conflict. Jewish holidays have a nice way of dividing up. Passover has first and second Seders. Rosh Hashanah has two days and two nights. Hanukkah has more than enough days to go around, and no one cares enough about it to insist on having all eight days anyway. (Want to know when that second Seder will be in 2013? Check out the handy website, friend to family lawyers everywhere.)

But I do understand why Christmas is so poignant for divorced parents. The loving family gathering in their pajamas around the tree on Christmas morning is no more. It seems like the ultimate loss - a loss of innocence for kids, and a loss of that intimate joint venture that is the production of Christmas by adults for the benefit of their children, the shared joy of conspiring in the manufacture of memories which will last a lifetime. But for the most part, kids seem to be resilient and do fine regardless of the specifics of the arrangements. In this instance, I think it's actually the adults who suffer more.