San Francisco Family Law Blog

Correct misconceptions concerning Family Court
By Peter Langley
Contra Costa Times

MARTINEZ IS HOME to our county government and Contra Costa County Superior Court. The branch of that court that directly affects the lives of more people than any other is the Family Court Division, located at 751 Pine St.

Representing people in Family Court is what I do as a lawyer. Over the years, I have listened to their many preconceived ideas of how the court works.

They are, generally, far from the reality. This has always concerned me because the court's decisions have such a personal impact on people's lives.

People generally think that their case must go before a judge, who will decide things. In fact, judges only get involved when there are issues that the parties cannot resolve informally. And a huge amount of their time is taken up with refereeing self-represented parties.

People think they need an "aggressive" lawyer. In fact, the court expects lawyers to cooperate and try to settle issues before a scheduled hearing. A lawyer who does not usually condemns his client to short shrift at the end of a judge's calendar or not being heard at all. Thus, all the effective family law lawyers are problem-solvers.

However, when the parties cannot agree or one party is taking advantage of the other, the court's involvement is critical. The authority of a judge's order can, for example, enable a party to obtain money to live, secure parental rights, or rein in an abusive spouse.

Mothers and fathers often lament that if the court could just hear from their child, it would be obvious who he or she wants to live with. As I have explained repeatedly, judges view custody as an adult matter, subject to mediation with a mental health professional. They do not want to see children in court.

Another complaint voiced, particularly by men, is that the Family Court is gender-biased. This is simply not true. The Family Code is gender-neutral and the judges, in my experience, apply it impartially.

Husbands and wives often want the court to make their spouse pay . . . for frittering away money, for neglecting the kids, for leaving them, or whatever. They learn, often after much time and expense, that the court is not a fault-finder.

Fault is a concept foreign to our family courts. It doesn't count. No matter how disreputable a human being your spouse is, he or she will still get 50 percent of the community property. And proving bad character won't get you a dime more in support.

This seems unfair on its face to many people going through divorce. It offends their moral sensibilities that people are not held accountable for their acts in court.

People used to be. Until 1967, a party had to prove that their spouse committed some morally culpable act such as mental cruelty or adultery to qualify for a divorce in California.

The Legislature abandoned this concept in favor of a simple, universal ground for getting divorced: irreconcilable differences. In other words, we don't get along.

Some argue that people should not be able to get a divorce so easily. This ignores the complexity of issues that face family courts today.

Historically, marriages were for life and divorce was scandalous. When it happened, the results were predictable: the husband moved out and paid support; the wife got custody of the children and the husband got visitation.

Now things are different. Advocates for civil rights, women's rights, father's rights, and gay rights have all weighed in to change the paradigm. Women work, husbands can be awarded alimony, and couples share custody.

The California Family Code is a labyrinth of provisions covering procedural rights, calculation of child support, the many factors to consider in awarding custody and spousal support, what behaviors constitute domestic violence, determination of parentage, the rights of domestic partners, and other subjects.

Applying the code and the court decisions interpreting it, and controlling raging emotions, consume the Family Court judges' time. Asking judges to determine fault would add an impossible burden.

Visit the Family Court -- it will be an eye-opener. You will see the emotional turmoil that plays out there every day. And you will better understand this most vital branch of our court system.