Every year, the same calls arrive in the same order. Early December: "the order says we alternate, but he says it is his year." Two days before Christmas: "she will not answer the phone about the exchange time." The week after New Year's: "can I do anything about what happened?"
Most of those calls trace back to the same root cause, and it is not a bad co-parent. It is a holiday parenting time clause that was never specific enough to tell anyone what to do. New York gives you no default to fall back on, so a vague clause leaves a vacuum, and a vacuum in late December gets filled by whoever is more willing to fight.
There Is No Default Holiday Schedule in New York
People are often surprised by this. New York has a detailed statutory formula for child support. It has an advisory schedule for how long maintenance should last. For holidays it has nothing at all.
Custody and parenting time are decided under the best interests of the child standard, set out in Domestic Relations Law §240(1)(a) for divorce cases and Family Court Act §651 for Family Court proceedings. That standard tells a judge how to decide. It does not tell you that Thanksgiving alternates, or that Christmas Eve runs to 2 p.m., or that spring break follows the school district calendar. Those details exist only because somebody wrote them into your order or your settlement agreement.
Which leads to the rule worth remembering: if your order is silent about a holiday, neither of you has a right to it. The regular schedule simply continues. If December 25 happens to fall on your co-parent's ordinary Thursday, it is their Thursday.
Why the Holiday Schedule Has to Override the Regular One
A workable parenting plan is built in layers, and the order of those layers has to be stated explicitly. The convention that holds up is: the holiday schedule controls over the regular weekly schedule, and the vacation or school-recess schedule controls over both.
Without that sentence, you get genuine ambiguity. One parent reads the holiday clause as an addition to their regular weekend. The other reads it as a substitution. Both readings are reasonable, which is exactly the problem.
Say it plainly in the document: which layer wins, and whether missed regular time is made up or simply absorbed. The second half of that sentence prevents its own category of argument in January.
What a Holiday Clause Has to Say to Be Enforceable
This is where vagueness stops being a nuisance and becomes a legal problem. To hold a parent in civil contempt for violating a custody order, the Fourth Department, which covers Erie County, requires proof that "a lawful court order clearly expressing an unequivocal mandate was in effect" and that the person had "actual knowledge of its terms" (Matter of McRae v. Brown, CAF 21-00848 [4th Dep't Dec. 23, 2022], quoting Matter of Mauro v. Costello, 162 A.D.3d 1475 [4th Dep't 2018]).
Read that standard against a clause that says only "the parties shall alternate holidays." Which holidays? Alternating starting when? Does the holiday begin the night before or that morning? A judge cannot find an unequivocal mandate in a sentence that does not contain one, and cannot hold anyone in contempt for breaking a rule the order never clearly set.
A clause that survives contact with December names, for each holiday:
- Which parent, in which years. Odd and even years, stated by year rather than by "this year," and anchored to a named starting year.
- Exact start and end times. "Christmas Eve from 10 a.m. until December 25 at 1 p.m.," not "Christmas Eve."
- Where the exchange happens and who drives. Both legs.
- How the holiday is defined. "Thanksgiving break" following the child's school district calendar is a different thing from "Thanksgiving Day," and Western New York districts do not all break on the same days.
- What happens when the holiday abuts a weekend that already belongs to one parent.
Splitting Christmas Day itself is common around Buffalo and works well for families who live close to each other. For parents twenty-five minutes apart it is fine. For parents an hour apart with small children, alternating whole days usually serves the children better than a 1 p.m. handoff in the snow.
The Informal Swap, and How It Goes Wrong
Co-parents trade holidays constantly, and flexibility is generally good for children. The danger is forgetting what a private agreement is: a text message does not modify a court order. The order remains the order, and it binds both of you until a judge changes it.
McRae shows how quickly this turns. The custody order gave the father alternating weekends plus "such other and further visitation as the parties may agree." The parents agreed informally to extend one weekend until Monday morning. The child was not returned at the agreed time, and the mother ended up obtaining an order to show cause and police assistance to get the child back several days later. The Fourth Department affirmed the contempt finding against the father.
Note what did the damage. The agreement to swap was permitted by the order. The problem was that the extension created a soft edge, and when the handoff did not happen there was no clean line to point to. If you swap:
- Confirm it in writing, in one message, naming the exact dates and times.
- Keep it to those dates. Do not let a swap become a new informal pattern.
- Say explicitly whether anything is owed back, and when.
- If the swaps have quietly become the real schedule, get the order updated to match. A year of informal practice is not a defense.
When the Other Parent Will Not Follow It
If your holiday time is clearly stated and your co-parent refuses to honor it, the remedy is a violation or enforcement petition. Family Court Act §156 applies the Judiciary Law contempt provisions to Family Court proceedings, and Judiciary Law §753(A) requires that the conduct defeated, impaired, impeded or prejudiced a right or remedy of the complaining party. Civil contempt must be proven by clear and convincing evidence, and an appellate court will not disturb a contempt determination absent an abuse of discretion.
In practice, courts reach for make-up parenting time, a clarified or more specific order, and counsel fees far more often than for jail. A single missed holiday rarely produces a dramatic result. A documented pattern is a different matter, and documentation is the part parents control.
Two cautions. First, do not self-help. Withholding the children in response puts you in violation of the same order, and judges notice symmetry. Second, child support and parenting time are separate obligations, and neither excuses the other. We cover the mechanics in more depth on our pages about enforcing court orders and contempt in Family Court.
Travel, Family Out of Town, and Consent
Holiday time is when travel questions surface, often for the first time. Whether you may take the children out of state, how much notice you owe, whether you have to share an itinerary and whether you need written consent all depend on what your order says. Many WNY orders are silent, and silence is not permission when the other parent objects.
Crossing to Ontario for a holiday visit raises a separate issue: a child may need a passport and a notarized consent letter from the other parent, and a border officer is not going to interpret your custody order for you. Sort that out weeks ahead, not the night before. Our post on traveling with children after a divorce covers the documents in detail.
Why September and October Are the Window
This is the practical part that national legal websites cannot tell you. Erie County courts do not have a separate fast lane for holiday disputes. A petition filed in late November enters the busiest part of the calendar, and the return date can easily land after the holiday you filed about. Winning in January is not winning.
So the honest advice is about timing. Pull out your order now and read the holiday paragraph as though you were a stranger trying to follow it. If you cannot tell from the page alone who has the children, on what dates, at what hours, and where the handoff occurs, you do not have an enforceable holiday schedule. You have a disagreement waiting for a date.
Fixing it in the fall is usually straightforward, and often does not require a hearing at all. Two parents who agree can submit a stipulation adding the missing specifics. That is a far smaller undertaking than a contested violation petition in December, and it is the version your children never have to see. We help parents throughout Erie County, from Williamsville through Buffalo and the surrounding towns, get this sorted before it becomes urgent. If you want to sketch out a schedule first, our parenting schedule builder lays out the holiday grid.
Frequently Asked Questions About Holiday Parenting Time in New York
Does New York law set a default holiday parenting schedule?
No. There is no statutory holiday calendar in New York. Custody and parenting time are decided under the best interests standard in Domestic Relations Law 240(1)(a), and in Family Court under Family Court Act 651, and the holiday schedule itself comes from whatever your order or settlement agreement says. If your order is silent about a holiday, neither parent has an automatic right to it, which is precisely how December arguments start.
My order says we alternate holidays but nothing else. Is that enforceable?
It may not be. To hold someone in civil contempt, the Fourth Department requires a lawful court order clearly expressing an unequivocal mandate, and actual knowledge of its terms (Matter of McRae v Brown, 4th Dep't 2022, quoting Matter of Mauro v Costello, 162 AD3d 1475 [4th Dept 2018]). A clause that does not say which years, what hours, where the exchange happens and who drives may be too vague to enforce. Judges cannot hold a parent in contempt for breaking a rule the order never clearly stated.
We agreed to swap holidays by text. Does that change the order?
No. A private agreement does not modify a court order, and relying on one is risky in both directions. In Matter of McRae v Brown the parents informally agreed to extend a weekend, the child was not returned on time, and the mother had to obtain an order to show cause and police assistance to get the child back. The Fourth Department affirmed a contempt finding. Swap if it helps your children, confirm it in writing, and keep it narrow to the specific dates.
What can I do if my co-parent refuses to hand over the children for my holiday?
You can file a violation or enforcement petition. Family Court Act 156 applies the Judiciary Law contempt provisions to Family Court, and under Judiciary Law 753(A) the conduct must have defeated, impaired, impeded or prejudiced a right of the complaining party. Civil contempt has to be proven by clear and convincing evidence. Courts more often respond with make-up parenting time, a clarified order or counsel fees than with jail, but a documented pattern matters. Do not withhold the children in return, because that puts you in violation too.
When should I fix a holiday schedule problem in Erie County?
Before November, in practice. Petitions filed in late November and December land in the busiest stretch of the year, and a return date can fall after the holiday you are fighting about. If your order is vague, if your circumstances have changed, or if last year went badly, the useful time to deal with it is early fall, while there is still room on the calendar.