The Family Law system in the State of California is obsolete. The adversarial process creates financial and emotional stress and harm to children. Three times the State has tried to “reform” the system, but using the same thinking that created the problems in the first place is not the answer.
Everybody writes about the trauma and the failures of the current adversarial process, experts in a variety of disciplines ranging from finance, sociology, psychology and legal to everyday anecdotal stories published in divorce magazines and on the internet. But no one is doing anything except rearranging the deck chairs.
Our goal is to present research that provides a comprehensive plan to create a rational plan, a system that offers true assistance to families in transition. The present system enables the worst behaviors of one former spouse to another.
“When all you have is a hammer, everything looks like a nail.”
Abraham Maslow
Financial Research
What would be the cost to the taxpayers of such a process?
We are calculating the cost to the taxpayers of the obsolete present family law process in each of the 58 counties of this state. Next step will be to calculate the cost of the new rational fair process and the financial savings.
Harm to Children
Family Code section 3020 California law: “It is the public interest of this state to assure that the health, safety and welfare of the children shall be the court’s primary concern…”
In 2008 the Board of the California Chapter of the Association of Family and Conciliation Courts, declared a public health crisis, that “there is a clear and present danger to the public health of the children of this State based on our society’s failure to adequately address the impact of child custody proceedings upon children as a chronic, system-wide, statewide, public health crisis which impacts the previous, current and future generations of California’s most precious resource—its children.”
And nothing has changed since then except the addition, in the official forms petition and response for dissolution of marriage forms, of the explanatory words “parenting time” in parentheses after “child custody and visitation” and also: “Child visitation (parenting time) be granted to …”
Twelve states have eliminated the ugly pro-litigation words “custody” and “visitation” from family law sections, replacing with something like “parenting plans.” The word “custody” has three words that go with it, “win…lose… battle.” “Visitation” is an insulting concept to apply to a parent.
But in 1989, the California legislature rejected changing custody and visitation to “parenting plans,” yet all the court mediators use the term, parenting plans, a realistic, non-adversarial concept. Words do make a difference.
We shall devise a plan to minimize the impact on children when parents wish to end relationships with each other.
Legal Research
One issue cited often in regard to family law is “due process.” A member of the Elkins Task Force* said Family Court 2000** foundered on the issue of due process.
“Due process” comes from the Fifth Amendment to the Constitution of the United State which refers to criminal prosecution and says, in part, “No person shall…be deprived of life, liberty, or property, without due process of law… .”
But divorce is not a process of depriving anyone of life, liberty or property. Basically, divorce, in addition to establishing “irreconcilable differences” between partners, is a question if identifying property and debt, putting a value on everything, characterizing it as community or separate, and dividing everything–equally if you ask a judge to divide it.
Community property is part of the marriage contract, to be divided equally upon divorce, so where is the depriving of property? You are only entitled to one-half by law. And doesn’t “due process” include a trial by jury? Family law cases are not entitled to juries.
Besides, the State gets involved in dividing property and children in a divorce only if one or the other partner asks it to. People can settle everything without the assistance of a judge –or a lawyer–if they want to.
The Family Code of California says rules and procedures applying to civil cases apply to family law, except if the Judicial Council adopts other rules and statutes for family law. Section 210 of the California Family Code. Section 211 of that code says, “Notwithstanding any other provision of law, the Judicial Council may provide by rule for the practice and procedure in proceedings under this code.”
It would appear that the Judicial Council of California could change family law rules right now. It would further appear that they need incentive to do so.
In 2007, the Judicial Council surveyed the citizens of this state in regard to their courts. People responded that what they wanted from family law was a chance to tell their stories and a fair process. With less and less money for courts, there is less and less time for family litigants to tell their stories. Most cases are settled in courthouse hallways and cafeterias between lawyers.
Lawyers insist on complicated, time-consuming procedures that they say will insure “due process.”
The following was written by a third year law student:
“Basically, due process requires a state action. If the state isn’t the one taking anything (life, liberty property, etc.), then due process doesn’t come into the equation (enter freedom of contract). Now, historically (and by that I mean back in England), divorce wasn’t part of the “law” courts; it was part of equity. And equitable relief cannot be granted b y a court at law.
“This is relevant only because when the framers wrote the Bill of Rights, the seventh amendment (right to trial by jury in all civil matters), they explicitly reference the common law, not equity. Courts since then have interpreted that language to preserve the difference between common law remedies and equitable remedies. Over the years, cases wherein both equitable remedies and damages are asked for, law takes precedence over equity (as it traditionally did), and juries are used. So, why is this relevant?
“Well, it is relevant only because, constitutionally speaking, it’s not all that clear that process is due or what is due [in family law], if anything. Is there a taking? On the one hand, the state is calling all the shots: it makes the community property system and makes/sanctions/enforces the division of property under that law. This seems to suggest that there is state action, and that, as such,litigants must be guaranteed some process.
“On the other hand, the citizens are responsible for their legislature and the laws that come out of it to some extent, so the state is not acting totally undeterred, and the court is just dividing property that the parties co-own based on evidence presented by the parties. This seems to weigh on the side that “due process” isn’t really due. But it does point out the importance that the parties have an opportunity to fully present evidence and cross-examine adverse witnesses. “To be “state action,” the “state must be joint participant in the activity” or “only when [the state has] exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state.” (Citations.)
“Which isn’t of much help at all for divorce. In California, as the Court noted, statute says that all family law issues are civil trial and due all the process as a civil trial [But note Family Code Sections 210 and 211 above, which means, under statute, this belongs in a courtroom, and the parties are entitled to present evidence of their case and to cross-examine adverse witnesses.
“So, to change the system, one would almost have to lobby the legislators to create a separate system. This is one of the problems with marrying (forgive the pun) law and equity. The whole point of the Equitable Courts historically was to provide the fair outcome for the parties when law could not.”
* The Elkins Task Force was appointed by the Judicial Council in May 2008 “to conduct a comprehensive review of family law proceedings and recommend to the Judicial Council of California proposals that will increase access to justice, ensure due process, and provide for more effective and consistent rules, policies, and procedures.” More information might be found at www.courtinfo.ca.gov.
**Family Court 2000 was a subcommittee of the Family and Juvenile Law Advisory Committee to the California Judicial Council. After six hearings around the state in 1996, they wrote a draft of “A Proposal to Restructure California’s Forum for the Resolution of Family Related Conflicts.”
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