Most would agree that improvement of America’s family law systems requires knowledge of the role of the legal profession in the courtroom and in areas of public policy and statute development. Attorneys influence all of these sectors.
So, do the collective results of individually litigated cases reflect the unique reality of evidence and testimony offered in state courtrooms or do they reflect the constructs and prejudices which define ‘the system?’
Consider the following statement:
“The ultimate purpose of this organization shall be to bring about improvement in the laws of the several states relating to marriage and divorce and allied phases of family life, to the end that the law, in both philosophy and procedure, may tend to conserve, not disserve, family life; that it may be constructive, not destructive, as to marriage; that it may be helpful, not harmful, to the individual partners and their children; that it may be preventive, rather than punitive as to marriage and family failure.”
This is from the original mission statement of the Family Law Section of the American Bar Association. Judge Paul W. Alexander of Toledo, Ohio defended it in his article, “Public Service by Lawyers in the Field of Divorce” in 1952.
When the final verdict is rendered, how will the legal profession be judged for attaining its self-ascribed ‘ultimate purpose’?
Michigan Supreme Court Justice Maura Corrigan provides some perspective on the status of families in comments she delivered at the Mackinac Center for Public Policy in November 2006. Corrigan notes:
“Federal census data indicate that, in 1950, for every 100 children born, 12 children entered a broken family unit, with 4 of those being born out of wedlock, while 8 had parents who divorced. By the year 2000, that number had risen five-fold, to 60 out of 100. That is, of every 100 children born, 33 were born out of wedlock and 27 had parents who divorced.”
Judge Corrigan marveled about the economics of this. She said that about a third of Michigan’s 10 million residents have an active family law case and observed how female headed homes with no husband account for half of families in poverty.
Is the legal profession at all accountable for today’s reality where nearly 60% of children will spend part of their youth without one of their biological parents?
History shows clearly that attorneys designed and championed the passage of no fault divorce across America . Legal pundits argue that no fault divorce arose from public clamor for a more humane (and private) approach to serious marital conflict.
Others observe how eliminating grounds for severing the marital union and establishing unilateral divorce on demand could only increase divorce and benefit the market for family law business.
During the days of fault based divorce, the prevailing party, having proven a substantive failing of the other parent, usually retained custody. Creating an easy escape from marriage opened pandora’s box for children. A new rationale for assigning custody had to be invented.
The legal profession substituted the battle ground of custody for fault by promulgating a ‘best interest of the child standard’ to determine which parent qualified best to raise the children and whether the other parent met criteria to be a visitor of their child. Realizing family represented a ‘new frontier’ of expanding issues worthy of exploration, state bar associations began establishing family law sections to examine questions previously outside their purview.
It followed naturally that questions before the courts became topics for the law sections. Ordinarily, this could be constructive. Western civilization has advanced tremendously applying the Socratic method to problem-solving.
As divorce on demand burdened courts across the nation with accelerated demand for family break-ups, taxpayers faced mounting pressures to support single mothers with children. Suddenly, the impending economic tsunami of family brokenness was infiltrating every sector of American life. Lawmakers at the federal level averted financial catastrophe by establishing a child support enforcement system to transfer income from “absent” parents to support single parent homes. The nation’s largest welfare program second to social security was born.
The encroachment of family law sections into the area of policy and statute development has strained the Constitution beyond recognition. Today we have an almost seamless interface between the bar associations, family law sections, state legislatures, administrative agencies, and the judiciary. For America, civil liberties have vanished along with marriage.
Rather than respond to citizen appeals for relief in this area of law, attorneys, increasingly in control of key operations of state legislatures, obstruct marriage and family law reform. The ‘ultimate purpose’ expressed in the 1952 mission statement of the ABA Family Law Section has become a relic of ancient times.
The institutionalization of single parent child rearing has been one of the greatest public policy disasters in our nations’ history. The epidemic of childhood social pathologies correlate strongly with single parent child rearing and state enforced distancing of fathers, under color of law, from positions of influence in the lives of their children.
To reverse this trend, we must recognize how family law sections and their parent bar associations have largely become, special interest groups akin to any other trade association which represents the interests of its members foremost.
Numerous forces act to destabilize families. This article introduces only one perspective. It is not the writer’s intent to lay at the feet of attorneys the ills of society. The author recognizes the many good works of the legal profession and remains always willing to work with the profession for the betterment of society. Citizens simply ask no more than that the profession rise to and embrace its ‘ultimate purpose.’
Michael McCormick is Executive Director of the American Coalition of Fathers And Children (www.acfc.org). He resides in Washington DC with his wife and children.