Father's Day Falls on Her Day with the Kids. What Do I Do?

By: Matthew Smurda, Esq.
Last Update: October 28, 2016

Father’s Day can be one of the best days of the year for any father, regardless of whether his children are young or old. But, sometimes Father’s Day can instead be painful, especially when the father looks at his current child custody order, visitation schedule, or parenting plan and sees that Father’s Day is actually one of mother’s days of custodial time under the order or agreement.  

This article addresses several things that a father can do if Father’s Day happens to fall on “her day.” 

1. Try to Work Out a Compromise

Just like in many family law issues, the first step to be taken should be a meaningful attempt at settlement (rather than jumping into litigation). It is quite possible that the other parent will be open to modifying the custodial schedule for Father’s Day. And, it may be the case that the issue of Father’s Day was not carefully contemplated at the time that the agreement was reached or when the family law judge rendered his/her custodial order.  

So, it never hurts to at least ask. In contentious or potentially contentious situations, the request should be made in writing. If the other parent is not agreeable to relinquishing the entire day, then perhaps a long period of visitation in the morning or afternoon will be an option. The father could also offer to “swap” another one of his custodial days in exchange for Father’s Day.  

If the parents cannot work out the issue on their own, then they should turn to an objective mediator or therapist to help them work through the issue. Having such a person to be the “objective voice of reason” may help the parties work with one another to reach a resolution.  

2. If You Can’t Agree, Then You May Have to Go to Court

I constantly remind my clients that while settlement is always a desirable option, “it takes two to settle.” So, if settlement is out of the picture, then the only alternative may be to seek intervention from the Family Law Court. 

The manner in which court intervention should be sought will depend upon how much time the father has before Father’s Day. If Father’s Day is several months away, the issue should be handled by a traditional noticed motion that is filed with the Court. In California, that would be done by filing an FL-300 Request for Order (RFO) with the Court. The motion or RFO will be set for a hearing date that is typically at least 16 court days after the motion/RFO is filed. 

Typically, a declaration or affidavit that is signed under penalty of perjury must be attached to the motion or RFO.   The declaration or affidavit must set forth the relevant facts governing the issue, and it can also have exhibits attached to it (which can include copies of e-mails, photographs, prior court orders, etc.). If an order has already been made or an agreement has already been reached, then the father should certainly attach a copy as an exhibit (even if the Court already has a copy in its file). If the father reached out to the mother in writing requesting custodial time, then a copy of that writing should be included as well.  

If there is not enough time for a motion or RFO, then the father must appear before the Court on an emergency basis. In California, such an appearance is known as an ex parte application. The documents for such an emergency or ex parte application are similar to the noticed motion/RFO. However, many states will require an additional explanation as to why the circumstances warrant special or emergency treatment by the Court. This means that the father will need to explain the exigent circumstances that Father’s Day will come and go before the matter would be heard as a noticed motion. 

Most family law judges will be sympathetic to the father’s plea for time with his children on Father’s Day. But, the father should make sure that he presents a reasonable request to the Court. It may be helpful to offer to “swap days” with the other parent or to indicate that the father is willing to defer to the Court’s wisdom as to a fair and equitable outcome.  

3. If It’s Too Late This Year, Plan Ahead for Next Year

If a father does not act on this issue in a timely manner or if he is unsuccessful in doing so, he should not be discouraged. Instead, he should be proactive. First, he should set up plans for him to have “his own Father’s Day” with the children on another one of his custodial days. After all, the date for Father’s Day changes every year and the spirit of the holiday is all about celebrating the special father-child bond. Therefore, there really is no reason that the holiday can’t be done on a “make-up day” later. 

Then, the father should be proactive and begin to immediately take the steps discussed above before the holiday comes around again the next year to ensure that the issue is resolved in a timely manner. 

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