Vail Daily column: Allocation of parental rights | VailDaily.com

Vail Daily column: Allocation of parental rights

Almost half of all kids born in the United States are born outside of marriage. Among women younger than 30, more than half of all births happen outside of marriage. Once considered scandalous, this is the new normal.

For reasons good, bad, and none of our business, this new reality requires adaptation. The law, as a reflection and an instrument of the society it serves, likewise, must adapt.

It is increasingly common that instead of divorce when a couple separates what family law attorneys deal with is the issue of allocation of parental rights. A quick primer here might help.

TWO WAYS TO GET HITCHED

In this state, there are two ways to get hitched: either ceremonially or by common law. “Ceremonial” marriage is likely what you think of when you think of a couple getting married. You get the too expensive invitation to the too expensive wedding ceremony with the too expensive reception to follow. The blushing bride looks lovely in her too expensive wedding gown flanked by her court in lovely too expensive bridesmaid’s gowns. The good cheer, wassail and hopes for a bright and happy future flow freely.

Common law marriage—recognized by only nine states (Colorado among them) — makes the choice of a less formal marriage an option although there is nothing in the rule book which prevents the happy couple from enjoying a hootenanny to rival the most lavish ceremonial affair. Interestingly, 27 states have abolished common law marriage and 13 never permitted it.

Common law is, by the way, law that develops over time and by tradition. It is the law established by the precedent of prior cases. This is distinct and different from statutory law, which is created by the legislature. An example of each might be that licensing of attorneys is established by statute written by the legislature while the right to counsel for a criminally accused was established by the precedent of Gideon v. Wainwright, the landmark 1963 Supreme Court case.

COMMON LAW IN COLORADO

In this state, the elements of a common law marriage are, with respect to both spouses:

1. Holding themselves out as husband and wife.

2. Consenting to the marriage.

3) Cohabitation.

4. Having the reputation in the community as being married.

Essentially that’s it. If you live together and hold yourselves out publicly as each other’s spouse, congratulations, you are married.

Hmmm.

This, of course, presents some problems that I have addressed in other columns. Such as the fact that even if you are common law married, if and when the time comes, you must get formally divorced. If you think about it, this makes sense; if you are married, you are married, regardless of how you got there. And if and when you determine to divorce, you must get … um … divorced. There being no common law divorce, the only way to get divorced is through the courts.

Who gets the kids?

So what’s this got to do with Allocation of Parental Rights?

It’s this.

When a couple gets divorced, there are certain things to sort out. These generally include division of the property acquired together, whether one party will pay the other maintenance (in other states this is known as alimony), and, if there are kids, who will provide what for the kids and who will have the kids and when.

If a couple skips the getting married part and neither can support a claim that they were, in fact, married under common law, then that eliminates that marital property must be divided under the auspices of the court, there being no marital property to divide. Instead, the unmarried couple must sort this out themselves. Similarly, if there is no marriage, there is no maintenance (or alimony) to be determined or paid as neither party owes a legal obligation to the other. There remains, however, the matter of the kids; who will have them and how much and when; and who will provide for the kiddies’ financial needs?

And when it comes to the welfare of the minor children (i.e., those who have not yet reached their 19th birthday), the court cares not a whit whether mom and dad were married. The State — and therefore the court — has an essential interest in the welfare of the children and making sure they are cared for properly.

COURTS GET INVOLVED

Even when a couple skips the marriage but has children between them, if and when they separate, they must go to court and sort out those issues relating to the children’s welfare.

Allocated Parental Rights requires the court’s involvement in determining where the children will live, when the child overnights with each parent, what support will be paid for the children and how the parents will share child-related expenses. Usually, the parties sort this out and submit it to the court for approval. Occasionally, however, when a separating couple cannot work these things out, they are left for the court to decide. Either way these matters are resolved, however, their resolution becomes an order of the court and as such is enforceable should either party neglect what are now his or her legal duties.

A preeminent concern of the state is the welfare of young children. And married or not, when a child is brought into the world, the courts will ensure the care, feeding and emotional well-being of an innocent young life.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.