Who gets Christmas morning? What happens if your ex refuses to return the kids? Can you take them out of state without permission?

Custody battles don’t take a holiday, and for separated parents, the most wonderful time of the year can feel like a legal minefield. In this special episode, I break down how courts divide holiday time, what happens if custody orders are violated, and why communication is the key to keeping the season stress-free. If you’re co-parenting this holiday season, this is the conversation you can’t afford to miss.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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 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?

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?

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.