questions & answers

Question: My ex would like to take our two children to CA during a school week. We have two conflicting documents. The Parenting Plan For: Joint Custody with Joint Custody Agreement states as follows: B. (Bold) SUMMER MONTHS OR SCHOOL BREAK LONGER THAN 4 DAYS: (Unbold) The weekday and weekend schedule described above will apply for all 12 calendar months EXCEPT: Each Parent is entitled to a one week period of vacation time with the children. Each parent shall provide the other with 60 days notice of their proposed dates for vacation. If there is a conflict of dates, Father's schedule shall have preference in odd years and Mother's schedule shall have preference in even years. I am assuming this means he can only take the children on vacation during summer months or school break longer than 4 days. .... and the Consent Decree of Dissolution of Non-Covenant Marriage With Minor Children states the following: Custody and Parenting Time ... h.Vacation. Each parent shall be entitled to one additional week of vacation with the children in each year. Each parent shall provide the other with 60 days notice of their proposed dates for vacation. If there is a conflict of dates, Father's schedule shall have preference in odd years and Mother's schedule shall have preference in even years. This document does not state anything about school. Which document prevails?

Answer: I cannot predict what a court will do about this, but these two documents do not necessarily contradict each other, especially if the judge expressly adopted the parenting plan as part of the final divorce decree. Paragraph (h) simply confirms that both parents get to use a week for vacation time. One could regard Paragraph B (in the parenting plan) as a provision that simply clarifies that this vacation will be taken during the summer or school breaks, and nothing in Paragraph (h) *contradicts* this. I estimate that the judge will probably make every effort to harmonize one section with the other, rather than flatly rule that one "prevails" over the other.
Your ex might also want to consider the requirement of state law that children attend school when it is in session, and I have to believe that a judge might not look kindly upon a parent who unnecessarily yanks a kid out of class for so long. At minimum, the court might want to know why this vacation could not occur during the summertime. Your question does not indicate how urgent your situation is, so you might want to consider consulting with an attorney right away, in case an expedited motion with the court becomes necessary to stop the children's removal from class.