Vail Daily column: God bless the child (in domestic law)
Them that’s got shall get
Them that’s not shall lose
So the Bible says
But it still is news
Mama may have, and Papa may have
But God bless the child
That’s got his own
That’s got his own
— Billie Holiday and Arthur Herzog Jr.
Usually, one of the first things I ask a new client that comes to me for a divorce is, “Are there minor children of the marriage?”
If the answer is yes, I say something like, “They are the most important thing.”
Although that’s my opinion, it’s not restricted to my opinion. In this state, and I presume most others, children reign supreme in domestic law court. A question that the court will ask repeatedly throughout divorce proceedings — and a question the divorcing parties would do well to ask themselves — is “what is best for the children? What will best promote their welfare?”
The first ten years of my legal practice, I lived and worked in San Diego. It was a calmer time, a time before Columbine, Virginia Tech, Sandy Hook, airport security and 9/11. A metal detector was something a few hobbyists used on the sparkling beaches of La Jolla Cove to look for treasure. One would not have thought to walk through one to board a plane, attend a Chargers game or go to court.
That, however, changed.
The first court in San Diego to get a walk-through scanner was family law court. Bankruptcy court was second, criminal court third. And then the floodgates opened up. Now, there, as here, going to court means a partial Gypsy Rose Lee act before running the electronic gauntlet before the keen eyes of a deputy or two.
What’s important to note here is that the domino effect described above: family law court followed by bankruptcy court, criminal court and then the rest, is a good reflection of where emotion lies in a courthouse. Love and family first, money second, freedom third and then who even cares?
To state it simply, emotion — understandably — often runs at a fever pitch in divorce and surface-of-the-sun hot when someone’s messin’ with one’s kids, even if it’s one’s soon-to-be ex who’s doing the messin’.
Let’s answer a quick question before we go on; what is domestic law?
It may be defined as that area of law that has to do with domestic relations, relationships between various family members, such as husbands and wives, fathers and mothers, children and parents, that are regulated by family law.
It is a special area of law because these relationships are special. In domestic law, some of the rules are special too. For example, while trial by jury is a usually available in most civil disputes (and virtually all criminal matters), it is not available in family law matters, the law recognizing that family rights should not be subject to the potential whims and prejudices of a jury.
When children are involved in a divorce, the view of the court to the furthest extent possible is that the children should not pay for the sins of the parents. If the parents are at war, the children should not be the targets, devices, instruments or collateral damage of the conflict.
A policy of Colorado is to encourage as much time for the children with each divorcing parent when so doing will not endanger the children. Ideally, the parents will act like, well … adults … and will put the interests and welfare of the children ahead of their own. If possible, each parent should enjoy equal time with the kids and should resist employing the kids in parents’ disputes. The court will take action against a parent who unloads on the kids his or her grievances against the other spouse or uses them as pawns to get back at the other spouse.
What the court is looking for is a safe, secure and nurturing environment for the kids in each parents’ home. When conflict boils over between the parents, the parents must simply keep a lid on it and work it out between themselves — or with the help of their lawyers—and not catch the kids up in the skirmish.
Too often, parents — even those who truly love their kids and who in calmer times would do anything to protect them — use the children as pawns in the chess game with their partner. Too many times I have witnessed, or been told, that one spouse will play time with the children against some trade-off that parent wants from the other.
This sort of nonsense must be voluntarily resisted. If it is not, the court will step in.
In domestic court, children reign supreme. And well they should. They are innocents not the cause of the parents drifting — or sometimes, exploding — apart. While most kids are pretty resistant and adapt when their parents separate, a lasting war between the parents can cause deep and lasting scars and can sometimes lead to life-long resentments, driving the kids permanently away from one parent or the other. Using the kids as instruments of divorce can certainly backfire.
In family law court, the court will always keep its eye on the kids. What is best for them? Are they in any danger? Are parents nurturing them and providing for their welfare?
God bless the child
Who the court will make sure
Has got his own.
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 and at either of his email addresses, email@example.com and firstname.lastname@example.org.