For children, summer is traditionally a time for school break, summer camp, pool trips, and family vacations.  Unfortunately, for children whose parents are going through a divorce, summer can also mean being subjected to fights over summer camp, fights over whether they get to go on a vacation at all with either parent, and no pool trips because their parents have spent too much money on their divorce attorneys to have any financial resources available to pay for the cost of the pool membership.  This is absolutely unfortunate and truly only remediable if both parents put aside their emotional hostilities towards the other and take into consideration the best interests of their children, especially during the summer months when their children are not focused on classwork, homework, and extracurricular activities, but focused on leisure time.

The Family Court, unfortunately, is not established or particularly well equipped to handle what happens to children of a divorcing couple during the summer months.  In my experience as a divorce lawyer, parents have done little planning for the summer months while they are going through a divorce.  Finances are tight because of their divorce and there is a tremendous amount of uncertainty about their future, causing interim financial decisions about vacation spending and summer camp choices more difficult to make, particularly for a financially reliant spouse who has primary custody of the children. This typically means that vacation plans are not considered, let alone finalized, until the summer is either right around the corner or already started, which creates significant problems in utilizing a Family Court judge as the decider.

First and foremost, the Family Court generally does not consider summer vacations as the same emergency situation litigants consider it.  They typically view summer vacations as an item that parents should plan for in advance and should be able to address between themselves.  If the parents cannot reach a resolution on summer parenting time, the Court does not generally open its doors through the Order to Show Cause process to address the situation.  This is because an Order to Show Cause requires specific findings pursuant to the seminal case of Crowe v. DiGioia. Those findings to determine that the Court should issue an order on an emergent basis are that there is a substantial likelihood of irreparable injury, the underlying rights are well settled, there is a reasonable probability of success on the merits of the claim, and the Court must consider the relative hardships to the parties in granting or denying the relief requested.  Most parents who run in to Court on an Order to Show Cause because the other parent has refused to agree to next week’s vacation plan leave the courthouse very disappointed that the judge did not consider their vacation the same emergency they considered it.  I have seen this routinely denied, with few exceptions, for international trips, summer vacations to Disney, summer camp enrollment, and the quintessential summer road trip, all for the same reason: Missing time is not an irreparable injury.  This is a disagreeable point given the memories that are made on summer trips as a child, but it is typically what a Superior Court judge decides.  Your lack of planning or ability to agree in advance does not cause an emergency on their part.

These motions, when heard on the Court’s regular motion calendar, are generally decided very differently as I have not met or appeared in front of a judge in New Jersey that does not believe that both parents have a right, absent fitness circumstances, to a summer vacation with their children. In fact, I believe that most judges in New Jersey believe that the non-custodial parent, if they have the ability to, are entitled to spend more time with their children during the summer months, particularly if they only see their children on an alternating weekend basis during the school year. Those parents that have “primary custody” of their children need to strongly consider this and understand it as I have seen many judges modify the summer parenting schedule to reverse the ordinary schedule during the summer months, move to a week on/week off parenting time schedule in the summer, or provide the non-custodial parent with significant time during the summer, beyond the simple vacation week.  Filing these types of summer parenting time motions, however, takes advance planning and foresight, especially given the volume of cases courts are dealing with and the timeliness of such a motion.  If a motion is filed too early and without sufficient information, it could be denied for lack of information about the generic summer plans.  Filed too late and the motion risks being adjourned and not heard until half the summer is already gone and the best laid plans going awry.

The foregoing creates a significant dilemma for divorcing parents, whose children will feel almost all of the effects of a lackluster summer.  An Order to Show Cause is likely not a viable option and filing a motion is time and information dependent.  Both Court-involved options will result in associated costs that may impair the financial ability to actually go on vacation, not to mention limit flexibility as the Court will not be as flexible as two parents working together. 

So what should parents do, particularly with the summer quickly approaching? Plan. Plan now, plan early, and be flexible with your divorcing spouse. Talk to your divorce attorney about your summer plans so that they can help you obtain the summer plan you want for your children without having to involve the Court, unless absolutely necessary.  Get your summer plans in writing to your attorney and get your divorcing spouses’ summer plans in writing from their attorney so that a beneficial plan can be created for your children. They do not deserve to be the victims of your divorce, which they will be if the summer is spent having their parents fight over where they can go and when. 

If I can be of any assistance in helping you or someone you know obtain the summer parenting time you want, whether for this summer or the many summers to come, please do not hesitate to email me at bmcfaddendinicola@hoaglandlongo.com or call me at 732-545-4717 to set up an appointment to discuss the specifics of your case.