Reconciling Divorce with the Holidays

How The Christmas Story relates to Divorce

Many of us associate the holidays with certain fond memories or warm feelings. It’s a time of year when many people make an extra effort to get together with family and friends. We often reconnect with relatives, spend extra time with our children, open presents, share great meals, sit around a fireplace, laugh, return gifts, watch football, nap, and hopefully get to see it snow.

Whether we attend church regularly or not, statistics show that the majority of us also make sure to attend a church service at Christmas time. During most Christmas services we sing hymns and carols, light candles, smile and say hello to lots of people we may not know, and we are reminded of the “reason for the season”…the birth of Christ, or The Christmas Story as we sometimes call it.

The Christmas Story.

When we hear those words, I am sure that many images quickly come to mind. First and foremost was the star of the show, baby Jesus himself. We are told that his mother wrapped him in “swaddling clothes” and laid him in a manger because there was no room for his parents at the inn. Then there was Mary, the beloved mother of Jesus. She was chosen above all other women to give birth to, and raise, the person who was sent to be the Savior of the world. We recall the Magi from the east who had followed the star for many months. When they finally found the place of Jesus’ birth, they presented their gifts of gold, frankincense and myrrh to the Christ child as they fell to their knees and worshipped him. Finally, we can’t forget the shepherds keeping watch over their flocks at night as they were startled by the host of angels who told them, “Glory to God in the highest, and on earth peace, good will toward men.”

Remember the location where most of that took place? It was just a simple stable. Most of us started coloring that nativity scene when we were just young children, and today, our live re-enactments even include cows, donkeys and sheep. The point is that we all know The Christmas Story and those images very well.

As I recently re-read The Christmas Story in Matthew and Mark for the hundredth time, a word, an image, jumped out that I had not really noticed before…a painful, ugly image…the word DIVORCE. It caught my attention because as a “family law” or “divorce” attorney, I had never associated something as hurtful, traumatic and devastating as divorce with the beautiful gift that I know as The Christmas Story. As I read the complete passage again, I saw how Mary’s fiancé, Joseph, approached his decision on whether, and how, to divorce the pregnant Mary. Once Joseph found out that his fiancé was pregnant with a child that was not his, he certainly must have been embarrassed, confused, and really angry. His response, though, is an important part of The Christmas Story that should be remembered, admired, and modeled by people today.

In Matthew 1, we are told that Joseph was engaged to Mary, and the Bible actually uses the words “husband” and “wife” to describe Joseph and Mary before they were married. This was important because during a Jewish betrothal period, although there were no sexual relations, it was a much more binding relationship than a modern engagement and could only be broken by divorce.

Matthew states that before they had married or been together as man and wife, Mary became pregnant – not by Joseph, but by the Holy Spirit. Now can you imagine what Mary’s neighbors, friends, relatives and especially Joseph had to say when she tried to explain her pregnancy? I would think that words like “unfaithful,” “adulterer,” “liar,” or even “crazy” were thrown around. I still hear those words with today’s divorces. Can you imagine what Joseph’s neighbors, friends, and family had to say about pregnant Mary or about Joseph himself…especially once he wanted to divorce her before the marriage? I would think words like “deadbeat,” “loser,” “liar,” or “coward” were thrown around. I hear those words, too, with today’s divorces.

Matthew 1:19, in the New International Version (NIV) states, “Because Joseph, her husband, was a righteous man and did not want to expose her to public disgrace, he had in mind to divorce her quietly.”

If Joseph had come to me for legal counsel, I have no doubt that I would have informed him that he had every legal, moral, and religious right to divorce Mary. In regards to Joseph’s notion of obtaining a divorce from Mary “quietly,” as we are told he wanted to do, I would have advised him that he was actually making himself look worse publicly by proceeding with a quiet, low-key divorce. I would probably have advised him to divorce her in the open, if only because it was his legal right to do so and in order to protect his own reputation.

Isn’t it a good thing, though, that Joseph did not take the legal and moral advice of those counseling him to divorce Mary? Remember when God spoke to Joseph in a dream and said, “Joseph, son of David, do not be afraid to take Mary home as your wife, because what is conceived in her is from the Holy Spirit. She will give birth to a son, and you are to give him the name Jesus, because he will save his people from their sins.” Aren’t you glad that when God spoke Joseph listened and he did not divorce Mary, which meant we could receive the best gift we could ever ask for? I sure am.

Fortunately, as we see in the rest of the story, just because someone has a legal right or religious justification to do something (such as divorce), it does not always mean someone should exercise that right and proceed with legal action.

I think Joseph is a great example for us today. He was a righteous man who did the right thing even though he didn’t have to. He was obviously kind, loving, gracious, gentle, and forgiving in his dealings with his wife. What sets Joseph apart, though, is that he was open to God’s leading and willing to make a very difficult decision once he felt God directing him.

Because Joseph was humble, checked his pride at the door, and listened to God’s guidance, that simple carpenter was chosen to be the earthly step-father for God’s only son, Jesus Christ. How can we not think that good things will happen when we, too, are receptive to God’s leading in our own lives?

This holiday season don’t think just about family, fun or food, and don’t simply focus on the better known individuals in The Christmas Story. This year think of Joseph, the father of Jesus. Remember, that because of his humble and godly character, he was open to God’s direction at a time when he was faced with the toughest of legal, moral and ethical decisions. Because he listened to God and was willing to do the right thing, and not divorce Mary, which was not necessarily the easiest or most popular thing, Joseph did his part in making sure that mankind could receive the ultimate Christmas gift from God…baby Jesus.

To view more information about John Meehling, an attorney in Dayton, Ohio, or if you are faced with legal, moral and/or ethical decision, that may result in the need to file for a Divorce, please click here on the word Divorce.

What is an in camera interview? The phrase “in camera” is a Latin term defined in Black’s Law Dictionary as: “In chambers; in private.”  The interview does not involve a camera or a videotape at all!  If a party is asking for the Court to have an in camera interview of a minor child, the request is for the Judge or Magistrate to interview the minor child privately with neither parent or his/her attorney being present.  An Appellate Court in Michigan said it very well years ago . . .

“A child custody determination is much more difficult and subtle than an arithmetical computation of factors.  It is one of the most demanding undertakings of a trial judge, one in which he must not only listen to what is said to him and observe all that happens before him, but a task requiring him to discern and feel the climate and chemistry of the relationships between children and parents.  This is an inquiry in which the court hopes to hear not only the words but the music of the various relationships.”  Dempsey v. Dempsey, 96 Mich. App. 276, 289 (1980).

What is the goal of an in camera interview? The goal is to provide the minor child with the comfort and security to be able to express his/her wishes regarding custody, visitation, and other child-related matters in a safe, non-adversarial environment with neither parent being present to hear what the child is saying.  The Court must determine what is in the child’s best interest, and this is one way to gain insight to the issues in dispute.

Who is present at an in camera interview? The interview is conducted by the Judge or Magistrate assigned to the case.  If a Guardian ad Litem has been appointed to assist with the case, the Guardian ad Litem may also be present for the interview.  That determination is up to the Court.  A court reporter is typically present to transcribe the interview, but the interview transcript is not available to either party/parent or to his/her counsel in order to provide some level of confidentiality to the child’s wishes.

How is the in camera interview conducted? Not surprisingly, every Judge has his or her own style.  Most try hard to put the child at ease and chat in a conversational manner to minimize the child’s discomfort.  Typically, the Judge won’t just blurt out a question such as “Where do you want to live?”  Judges try to get a true sense of where the child is coming from, but also try to detect if a parent has perhaps intentionally or unintentionally placed pressure on the child to express a certain opinion.

How does one obtain an in camera interview? Either party may request an in camera interview of the minor child/children by filing a Motion with the Court in the pending action.  A minor child should not be brought to Court for an in camera interview unless the Motion for the interview has been granted by the Court setting a specific date and time for the interview to take place.  Divorce Court Judges generally do not want children being brought to Court and “caught in the middle” of the litigation between their parents.  While the Judge must ultimately determine what is in the child’s best interest, you need to be sensitive to the pressure this process places on a child.

When does an in camera interview take place? The Court usually wants to conduct the hearing and hear the evidence before the interview of the minor child takes place.  But, each Magistrate or Court handles these interviews differently.  In addition, many Courts have their own rules regarding in camera interviews.  Sometimes the Court will set a separate date for the child to be interviewed, not wanting to conduct it on the same day as the hearing or trial.  Most Judges/Magistrates will, however, ask the attorneys for an overview of the suggested topics to discuss in advance of the actual interview.

How old does a child need to be for the in camera interview? The law says that the child must be a minor and not under a legal disability.  The Judge must first determine if the child is of sufficient age and maturity to express his or her opinions.  If the child is “too young” or immature, his or her wishes may not be considered by the Court.  Obviously, the older the child, the more likely his or her wishes will be considered by the Court.  There is no automatic age of election in Ohio, so no child regardless of his/her age has a “right” to select which parent obtains custody.

Can I block the Judge from conducting the in camera interview because I don’t want my child subjected to it? Probably not, absent some unusual circumstances.  When a Motion for the in camera interview has been filed, you have an opportunity to object or respond with your position.  But, it has been held that the plain language of Ohio Revised Code Section 3109.04(B)(1) absolutely mandates the trial court to interview the child if either party requests the interview.  If the child is in counseling, it would be good to mention it to his/her therapist in advance of the interview so that the therapist can try to de-stress the entire process with the child.

Will the Court conduct an in camera interview if a Guardian ad Litem has been appointed? Yes.  While some might think it would be duplicative with a Guardian ad Litem investigation, if one parent requests an in camera interview, it must be conducted even if a Guardian ad Litem has been appointed.

Will I learn what my child has told the Judge in the in camera interview? Typically, the Judge will bring the attorneys into the courtroom or chambers at some point after the interview and share a sense of the content of the interview.  Most Judges are somewhat guarded and prefer not to divulge too much detail from the interview in order to avoid possible retaliation by an unhappy parent.

Conclusion:

Parents and counsel should be very cautious about requesting in camera interviews.  Realize that even having a “private talk” without the attorneys and parents present may make the child feel like he/she has “testified.”  Keeping the children out of the middle of the divorce or custody litigation should be a high priority.  Try not to put your child in a position to have to “make a choice” as to which parent to live with.  This can be extremely unfair and can create huge pressures on a child.  Ideally, the only time an attorney should consider having a child participate in an in camera interview is when the child has voiced a strong desire to do so, and the child’s wishes are critically important to the determination at hand.

If you find yourself involved in a divorce, custody case or other family law litigation you may run across some unfamiliar terms. Here are some common ones with a short definition:

AFFIDAVIT – Information provided under oath.  Often times pertaining to current finances, debts and assets.

BAILIFF – The judge’s assistant who helps with the court docket and often oversees the decorum in the courtroom.

CONTEMPT – An action requesting the court to punish a person for violating a prior Court order.

CONTINUANCE – A delay or postponement of a scheduled court appearance.

CPO – A “civil protection order”. An order which can be issued by the court in a domestic violence proceeding requiring a person to vacate a home and cease all contact/communication.

DEPOSITION – A form of discovery where opposing counsel gets to ask questions orally to a party or witness under oath in the presence of a court reporter before trial.

DISCOVERY – The early phase of a case where each side requests information relevant to the issues at hand. This phase may include depositions, interrogatories, production of document requests, and requests for admissions.

DV – Short for a “Domestic Violence” action.

GAL – Short for “Guardian Ad Litem”. Typically, an advocate/attorney for a child. Please click here for links to several articles on GAL’s on this blog.

GUIDELINES – Short for “child support guidelines.” Calculations made based on a statutory formula with many variables, which presents a starting point for child support determinations.

IN CAMERA – A private interview between the Judge/Magistrate and typically a child without the parents or lawyers in the room.

INTERROGATORIES – Part of the discovery phase where written questions are submitted to the opposing party for response.

MAGISTRATE – A lawyer appointed by the Judge to hear cases and make recommendations of the findings of the facts and the outcome. Virtually, the same power as the judge.

PRO SE – A party who is not represented by a lawyer is acting Pro Se.

QDRO – Short for a “Qualified Domestic Relations Order”. This is a specially drafted Court order with many technical nuances dividing a person’s retirement account.

RESTRAINING ORDER – An optional order that is typically issued at the start of a divorce proceeding to maintain the current status, avoid harassment, prohibit disposal of assets and to prohibit retaliation for the filing of the action.