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Archive for February 13th, 2013

How a 1952 Divorce Opinion was Leveraged into Pushing the Conciliation Court Model and No-Fault Divorce. [Publ. Feb. 13, 2013, Re-formatted July 31, 2022].

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THS POST, published Feb. 13, 2013, is:

How a 1952 Divorce Opinion was Leveraged into Pushing the Conciliation Court Model and No-Fault Divorce. [Publ. Feb. 13, 2013, Re-Formatted July 31, 2022]. (case-sensitive short-link ends “-1l6”) (next-to-last character is a lower-case “L”).  This post is about 10,600 words with my July 31, 2022, updates, including adding this title & short-link at top and bottom..

The next post after this one* is:

How VERY Pushy People got the Paradigm Shifted to Problem-solving Courts/No-Fault Divorce [Published Feb. 17, 2013]. (case-sensitive short-link ends “-1lC”) (next-to-last character is a lower-case “L”).  This post is about 7,000 words with my July, 2022, updates, including adding this title & short-link at top and bottom..

*(see date added to end of its title, a habit I adopted later in the blog)

Previously, there were seven causes for divorce; a plaintiff requested and was, or was not, granted it if any one of those causes was proved. 1. Adultery; 2. Extreme Cruelty; 3. Conviction of felony; 4. Willful desertion; 5. Willful neglect; 6. Habitual intemperance, and 7. Incurable insanity. When divorce was granted, one party was innocent and the other at fault. Only a single instance (with witness) of causes 1,2 and 3 was needed, a single year for causes 4, 5, and 6, but for the 7th, three years of the situation. Apparently the 7th cause was added because you can’t really fault an insane person..

We have been led to believe there is something noble and feminist about No-Fault Divorce, and indeed some highly placed feminist law professors are involved in its passage?

But I believe that it was more likely damage control, a strategic response to trial-court-confirmed evidence of severe physical brutality and extreme cruelty acknowledged in the 1952 Opinion, above. It appears to me a “bad” trial court and appellate decision, allowing counter-filing and denying both husband and wife the divorce, was a pivotal moment used to spearhead system change, a la “Hegelian Dialectic.” (Unfreeze/Change/Refreeze. Provoke Conflict to drive a situation in a desired direction, etc.). However, the powers in motion at the time were apparently waiting for just such an opportunity, and jumped on it, particularly a certain progressive judge, who (as it turns out) had influence on certain leading women law professors, at a time when even being a female law professor was rare.

Did this change to no-fault solve the problem and improve the status of divorce and custody issues?

Now, even despite potentially the presence of one, several, or even possibly all seven causes, even longstanding over years pre and/or post-separation, the courts can continue to force-order indoctrination services allegedly to reconcile or coach one (or both) parents into better co-parenting, or for example, may try to turn a convicted felon into a wonderful father through training and mentoring.

However, for the “cause” of parental alienation, now that fault and identified causes associated in the common ethics as “bad” (extreme cruelty, infidelity, abandonment, criminal convictions, etc.) are removed, in the discretion of any court judge, the punishment of completely breaking the relationship with the “alienating” parent is possible.

When fault for extremely cruel, even felonious behavior was removed as a legal grounds for divorce, it also seems to have evaporated from the cause for removal of children from the same extremely cruel, even felonious behavior. In realty, the new “fault” seems to be resisting the forced therapy, in practice, resisting the equivalent of extortion, or psychological reprogramming, and so we can have long, coercive incarcerations as “cure.” Antitrust attorney Richard Fine got 18 months coercive solitary confinement in Los Angeles (2009ff). A Georgia mother also got a total of around 18 months also and has scanned her paperwork to show the how truly collaborative this therapy (which involved funneling profits of her business into the Registry of the Court under two similar, but not identical case docket#s, was).

When law and courts are in coordinated movement towards the therapeutic model we have today, we can, and should, observe, and note that movement. The attorneys of the day most certainly did, in their law journals. Were we all reading law journals? No! Should lawyers and judges — versus people who have elected representatives — be writing the laws? Probably not! how can we stop it? For one, watch their private associations in motion, and speak up next time! Part of this next time is March 2013 (welfare reauthorization). Obviously (or it should be by now if you read this blog), the Social Security Act contributes to the cause by funding the exact types of services that the transformation away from fault-divorce to no-fault divorce anticipated, wanted, and got.

I used to think this situation began around the late 1980s and kicked into high gear with welfare reform 1996. I now am seeing it’s been a VERY long time coming, such as almost immediately after World War II (around the time the last state ratified the right of women to vote).

Recent finds, probably lawyers know about these, but I’ll bet most parents aren’t thinking about the significance.

In my continuing quest for where conciliation courts [not just the “Conference of Conciliation Courts” but the courts themselves set up by various judges] got started, and conciliation law passed, I found, and began reading:

Irreconciliable Differences: California Courts Respond to No-Fault Disolutions” by Elayne Carol Berg (Sept. 1974, Vol. 7 #3 of Loyola of Los Angeles Review, Table of Contents) discussing the major, almost “carte blanche” changes of the 1970 California Family Law Act (“FLA”). At only 37pp with footnotes (the footnotes themselves a good resource), and only four years after the major change in divorce law, why not read it?

Unlike the straight-propaganda found to be on many web shingles and private-purpose conference pages, this narrates and footnotes how, by whom, what, when, and in what form divorce law was changed, and with it, a family court venue (including the real estate & buildings) set up. I discovered a national organization (nonprofit, exclusive membership of bar attorneys only), that is, nonprofit, working to present THEIR concept of a UMDA (Uniform Marriage and Divorce Act) for all of us.

From here, I also learned that in 1966 California Governor Edmund G. (“Pat”) Brown had formed a Governor’s Commission on the Family, which reported to the legislature. Of course activist judges and nationwide commissions, and the ABA had their input, after various deliberations, we ended up with a Family Court, no-fault dissolution, and often, suppression of evidence and all but the most basic testimony about the former causes of divorce, several of which read pretty much like a description of what we now call “domestic violence.” The focus was shifted from actions to state of the marriage: reconciliable, or not.

Irreconciliable Differences” points to a California Justice Traynor 1952 opinion on a certain De Burgh v. De Burgh case. Did he use this case to call for a re-evaluation and re-write of grounds for divorce in a climate already primed to push therapeutic jurisprudence?

When I read that subsequently the California Legislature (Assembly Judiciary Committee) summarily rejected the Commission’s recommendations:

Counseling was believed to be effective only if both parties were willing to participate. …”to inject the powers of the state into matters of private concern” was an unconscionable invasion of marital privacy.”…suggested expense for mandatory counseling was “in excess of $10 million per year,” a heavy price to pay when no evidence established that counseling would have any significant effect on family stability,” and finally, that [it’s basically reducing the court to the function of signing off on a report, a job any referee could do“). . .

but still adopted the rationale of the De Burgh case, that 1952 Opinion & case, that judge, definitely had my attention. Of course I looked it up!

When I read that opinion, I knew we’d better talk about it. Before, one party, a plaintiff, had to prove one of seven causes for divorce. After, whenever we enter a courtroom, someone is going to speak, think, in act in terms of relationship jargon, require parenting classes up front (Kids Turn, Kids in the Middle) as innoculation, speed-diagnose a parent, order expensive therapy [if family has money] or the 20-minute variety [mandatory mediation + a ruling], to contract out services, etc.

Wouldn’t it make sense to read both the logic and the technique of this major system change? I found it a refreshing change to actually read others’ reasoning than the (inane and monotonous) proclamations of the behaviorists and their related associations. The documents involve some fine print, but the concepts are not really that complex, or even that long. Along the way, some startling and juicy admissions. I found the details definitely flesh out, gave meaning to the existing skeleton outline I had history of the courts, such as “Court Cancer Metastasizes” by Marv Bryer, the role of the nonprofit associations, and the funding.

The scene was panoramic, the actors operatic, the stage was set.

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