California Divorce Reform After 25 Years

By: Ovvie Miller

Periodical: Beverly Hills Bar Association Journal

Date: Volume 28, Number 4

Introduction

On January 1, 1970, the Family Law Act1 became effective in California.  The Act represented the first comprehensive revision of the state's divorce law since the Civil Code of 1872.  The legislation was the product of years of study and debate within and without the California state legislature.  It recognized in the main the conclusion of behavioral science that assigning blame for the breakdown of a marriage was an exercise in futility.  It provided for an equal division of community property and made other substantive changes to improve the law, including increasing the emphasis on counseling and conciliation services.  It also made a number of modifications designed to both make the divorce process less painful and to expedite the time necessary to secure a divorce.

It is now 25 years since the Act became law.  Its provisions, as amended by legislative mandate and judicial interpretation, form the heart of a newly effective omnibus Family Code.  Sufficient time has now elapsed to assess whether the goals of the advocates of reform were realized.  This article will present the views of some lawyers, judges and others interested in the results of the Act since its promulgation.  To properly appreciate the effects of the Act on divorcing Californians, however, it is helpful first to review some history.

When Rudeness Of Language Was Not Cruel

It was the beginning of the last decade of the 19th Century. Benjamin Harrison was President of the United States and Mary Waldron was living in Los Angeles with her second husband, David.  Unhappily, matters were not going well for Mary.  True, she had known of David's intemperate ways before the marriage.  It was for just that reason that she had insisted that he give her a written pledge that he would not drink to excess.  But he kept his pledge for only two months after the marriage.  When he was drinking, which happened at least two or three times per month, David called Mary the worst kind of names.  This happened in front of others, including Mary's niece and Mary's three young children by her first husband.  She would not stand for it - at least not without scolding him for his behavior.  Nothing seemed to work, however.  Resigned that he would not mend his ways, Mary finally secured the services of a lawyer and filed suit for divorce, alleging extreme mental cruelty.  The trial court granted her the divorce she sought.  The California Supreme Court had other ideas, however.

In a split decision, the Supreme Court in Waldron v. Waldron2 reversed the trial court and held that the trial court's findings did not support the judgment granting the divorce.  The findings which were deemed inadequate were as follows:

"[U]pon occasions when defendant was intoxicated, he wrongfully and unjustly, and without sufficient provocation to justify him in so doing, called the plaintiff vile names, once calling her a 'whore', and on several different occasions called her a 'damned bitch', and a 'damned witch from hell', in the presence and hearing of other people...thereby inflicting upon her grievous mental suffering...."3

In effect, said the Supreme Court, a married partner may have to suffer without remedy for

"mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm."3

In coming to its decision the majority of the court was greatly influenced by an 18th century English case which concluded that the courts cannot furnish cures for all the miseries of human life.  It is gratifying, at least, that the majority did not endorse the husband's conduct.  It labeled his speech as "defamatory, obscene and profane" and characterized it as "wholly unjustified, unexcusable and unmanly".  But, it appears, the court was persuaded that it would have likely been even more offensive to the wife's sensibilities had the husband called her such names when he was sober!  Finally, in administering the coup de grace to the wife's case, the court viewed the wife's response to the husband's conduct (by reproaching and scolding him) to be unkind and itself worthy of censure.  The wife's response, the court said, was probably the result of her "ill temper, bad judgment and a mistaken view of her duty."  She should have tried kindness instead, according to the court.4

The dissenting opinion pointed out that by requiring a physical manifestation of the mental cruelty, the majority misapplied the relevant statute.  Who can argue with the sentiment of the minority justices when they said that under the majority view the wife would have to be a wreck before she could be rescued?  The dissent argued that the majority doctrine made legal cruelty depend "not on the misconduct of the husband but on the endurance of the wife."5  The majority was unmoved by these arguments, however, and the wife was denied her divorce.  This, then, was the situation faced by divorce litigants in California (at least wives) at the height of the Victorian era.

It Doesn't Pay To Nag

The changing view of the California courts in finding the requisite "cruelty" to support a divorce judgment is illustrated by a case decided a generation after Waldron.  In Barngrover v. Barngrover6 the trial court granted the plaintiff husband a divorce based on mental cruelty.  The appellate court affirmed the judgment and in so doing declared that the record showed "a most peculiar case of nagging."7

The court first agreed with the wife's appellate brief that she took her religion seriously:

“The appellant says that ‘she is an earnest Christian woman.’  It may be added that the whole record sustains that claim.  It may [also] be added that apparently the plaintiff is an earnest Christian man.  Nevertheless, it is a sound legal proposition that nagging by a spouse of such character may have, and probably would have, the same effect on the other spouse as any other kind of nagging.  The appellant also argues that 'her motives have always been good.'  Conceding such to he the fact, it still remains that nagging from good motives may he just as hurtful as nagging from any other kind of motive.  The case was most thoroughly and completely presented to the trial court by able counsel who tried the case behind closed doors.  The testimony covered a period of ten years and over.  The case for the plaintiff was presented by calling to the witness stand sixteen of the neighbors and friends of both of the litigants.  Two of those witnesses were ministers of the gospel.  One of them was at one time the pastor in the Protestant church of which both the plaintiff and defendant were members.  One cannot read the record without admiration for the apparent truthfulness of each and all of the witnesses and the absence of bias and prejudice on the part of the witnesses.”

"The appellant says that if the facts contained in the record before us ‘establish grounds for divorce, then it is certain that any husband can divorce his wife, and any wife can divorce her husband at will, since the peccadilloes complained of are not as serious as those of which nine out of ten husbands and wives are guilty.’  This is not a sound statement, because a most cursory reading of the record discloses a set of facts seldom or never heard of.''8

The judgment for divorce was thus affirmed.  One may well call this decision right on its facts.  The only unanswerable question is whether the court would have given the wife a divorce had the husband been the nagger.

The Family Law Act

These early cases present a backdrop to legislation which ultimately became the Family Law Act.  The drafters of the Act hoped that much of the acrimony which was generated under the fault system of divorce would be eliminated.  No longer was it necessary to present real or fanciful testimony concerning wrongful conduct to establish grounds for divorce.  The Act focused on the question whether the marriage had irretrievably broken down rather than on reprehensible conduct of one or both parties.  It was also a statutory encapsulation of a 1954 California Supreme Court analysis of the real cause of most marital failures.9  The Act was intended to remove the financial incentive to allocate blame for the marital break up.10  The statute mandated an equal division of community property while spousal support (formerly "alimony") was to be based solely on the needs and circumstances of the parties.  Under prior law, where a divorce was granted on the ground of cruelty or adultery, the innocent party was ordinarily entitled to more than one-half of the community.11  In some cases the party securing the divorce on cruelty grounds received the lion's share or even all of the community estate.12  However, the extent of the award in excess of 50% was within the sound discretion of the trial court and most judges determined that a substantial penalty against the offending spouse was not warranted.13  This judicial view was endorsed as policy in the Act.  The question follows whether this reform legislation achieved all the objectives which were hoped for.

The Legislators' Views

Donald L. Grunsky was a State Senator and a co-author of S.B. 252 (as amended by A.B. 530, sponsored by Assemblyman James A. Hayes), which was enacted in the 1969 Session of the California legislature as The Family Law Act.  He credits the real beginning of the divorce reform movement to 1966, when Governor Edmund "Pat" Brown established the Governor's Commission on the Family.14  The recommendations of the Commission15 and the State Bar, through its Family Law Committee, were largely embodied in the Act.  Senator Grunsky expressed the view at the time that it was hoped that the Act would eliminate the "spectacle of private detectives sneaking around gathering salacious evidence against one of the spouses for presentation in a courtroom expose."16  While Senator Grunsky and his colleagues believed that the Act might prove useful in the ultimate goal of attacking the high incidence of divorce and strengthening the family,17 he later noted that California, like the rest of the country, has actually seen an increase in divorce.18  He does credit the Act with a beneficial mitigating effect in minimizing acrimony through its no-fault provisions.  The promise which Senator Grunsky hoped for with the passage of the Act was thus not completely realized.  It is unrealistic to think, of course, that the complex causes of divorce and family breakdown which have eluded solution could be adequately addressed by litigation passed by a single State.  It is to the credit of Senator Grunsky and Assemblyman Hayes, who gave legislative leadership to the reform movement, that they at least attempted to make our divorce laws conform more to reality.

Senator Grunsky has pointed out that there was no organized opposition to the reform bills.  The opponents fell into three camps: first, the much divorced woman who expressed her deep seated feeling that the fault concept was needed to keep a husband in line or to punish him for the injury done her; second, the divorced husband who believed that there should be no alimony under any circumstances and he should get the children; and third, a few lawyers who specialized in divorce.19

There is evidence, of course, that the Legislature gave consideration to the likely effect of the pending Act on the number of California divorces by its provisions reducing the time periods to satisfy residence requirements and for entry of the dissolution judgment.  What is also interesting is the fact that the likely effect on Nevada divorce practice was made known to the Legislature.  It was put this way by the Speaker of the Nevada House of Representatives when he testified before the California Senate Judiciary Committee:

"Passage of a reformed divorce code in California would cut Nevada's lucrative divorce trade to a dribble.  Many of the lawyers in Nevada would be hurt financially.

Half of the 220 attorneys in Reno are divorce lawyers ... and many of the older lawyers cannot do anything else.

We [Nevada divorce lawyers] will have to find something legitimate to do.  I told them what it will mean to us.  'It will ruin our racket'."20

No study has come to the author's attention which has focused on the Speaker's comments, whether they were a reflection of his candid appraisal or offered tongue-in cheek.  The simple facts are that Reno now has more than 800 lawyers, and of that number at least 200 appear to practice divorce law.21  California divorce statistics seem not to have been impacted.

The Lawyers' Views

Lawyers in family law practice overwhelmingly embraced the concept that no showing of fault be required to secure a marital dissolution.  The mandate of equal division of the community estate has likewise found favor among members of the bar.

One seasoned practitioner in Los Angeles has observed that, for the most part, there was no-fault divorce in California prior to the Family Law Act.22  He notes that most judges would not listen to much evidence about fault and they required that one only make a prima facie case on the issue of extreme mental cruelty and then get on with the property issues.

He recalls one case particularly:

"On one occasion, I had plenty of steamy evidence of flagrant misconduct on the part of the wife.  I represented the husband and decided to prove a strong case of extreme cruelty and see to what extent the court would award the husband in excess of fifty percent of the community estate as required by the applicable statutory law.

"The case was tried in Orange County before a very competent Judge.  I put on a plethora of evidence of extreme mental cruelty evidence which was by any measure proof of conduct that was sordid and shocking.

"Faced with what I can assure you was an abundance of evidence of extreme mental cruelty, the court did find that the wife had been guilty of extreme mental cruelty, and, carried away no doubt by the brilliance of my oral argument, awarded my client fifty three percent (53%) of the community estate.  That case convinced me that, in fact, we had no fault divorce in California as a practical matter prior to the enactment of the Family Law Act, which really ratified what had been the practice in most courts in this State."23

Most practitioners would likely agree that the Act was not a profound change in contemporary jurisprudence.

For the most part, it is true that, except in rare cases, California had a no-fault system in effect before the Act was enacted.  The experienced lawyer quoted above suggests that it was not the Act but a California Supreme Court case decided years earlier that had the most significant effect on the practice of divorce law.  In De Burgh v. De Burrgh,24 the court held that where each party had been guilty of acts of cruelty to the other sufficient to warrant a divorce, the trial court's refusal to grant either a divorce was error.  The trial court had based its ruling on the then provisions in the Civil Code which provided that a divorce would he denied a plaintiff where the defendant established a case for divorce against the plaintiff (i.e. "recrimination").  The Supreme Court ruled that the discretion vested in the trial court as a court of equity required it to consider the prospects of reconciliation, the comparative fault of the parties, and the effect of the marital strife upon the parties, their children and the community before barring a divorce on recrimination grounds.  By its decision, the Supreme Court clearly furnished the death knell of recrimination.  The case facilitated the grant of a divorce where the marriage simply could not be saved and it even authorized the grant of a divorce to both parties in appropriate cases.  The effect on the practice of divorce law was considerable:

“Prior to that decision, the aggrieved party, usually the wife, could in effect blackmail her husband who wanted to marry someone else, by filing an action for legal separation.  She could usually prove her case in spades.  If she did so, her husband could never get a judgment of divorce.  Therefore, faced with this reality, he had two options available to him: (1) he could go to Nevada for six weeks or Juarez, Mexico, for one day and pursue that charade with the attendant pitfalls or (2) he could pay through the nose.  Most men chose to follow the latter route and tried to make the best deal they could."25

Of course, as we know, it was the wife who in some cases was forced to make the best deal she could.

The Act thus ratified the more liberal judicial approach in terminating a failed marriage.26  By precluding a review by the divorce court of the conduct of married people, the distasteful spectacle of marital fault was consigned to an earlier time.  This was a salutary change not only for lawyers who practiced divorce law, but for others who had shied away from the field because of that unseemly aspect of the practice.27

Experienced lawyers have observed, however, that the elimination of fault may simply have moved the battlefield to another venue.  One thoughtful practitioner who served on the Governor's Commission on the Family, has commented that the animosity (or hypocrisy) that accompanied the earlier search for proof of grounds for divorce has simply been transferred to the financial issues that are dealt with in these cases.  He believes that the combination of this hostility, together with the increasing requirements imposed on lawyers to discharge their professional obligations in divorce cases, impose an enormous economic burden that few litigants can afford.28  He is not optimistic that anything except a fundamental change in our attitudes and institutions will remedy the problems.29

The Judges' Views

The late Superior Court Judge William E. MacFaden was presiding Judge of the Los Angeles County Domestic Relations Court at the time several bills proposing divorce law reform were before the Legislature in 1969.

Judge MacFaden was an outspoken supporter of reform and commented publicly on the various proposals then being debated.  He considered the reform effort as a major leap forward in the quest for a sensible and enlightened approach to the suhject.30  He did not envision the Family Law Act as a cure-all but as an opportunity to foreclose in contested matters the backbiting and lurid testimony which accomplished nothing except, as he put it, “damage to the pride of the parties and resultant harm to their children."31  To the critics who said that eliminating grounds would make divorce too easy, Judge MacFaden responded that divorce was already relatively easy in California with 98% of all cases being uncontested.  In his view, the solution to the high percentage of failed marriages was in education to prepare parties for marriage, and not in requiring the continuation of a marriage that has been destroyed.32  He also anticipated that the new law would alleviate some of the burden placed on the courts, first by eliminating the sensational fault type testimony; second, by eliminating the "fantasy" type cruelty testimony which was customarily given in default cases; and third, by giving the courts more time to concentrate on serious custody matters, as distinguished from custody requests which were used as threats to obtain an advantage in property division or alimony.33

A colleague of Judge MacFaden at the time, now retired Los Angeles Superior Court Judge Lester E. Olson, has expressed many of the same sentiments.  With Judges MacFaden, William P. Hogoboom (retired) and the late Marvin Freeman, Judge Olson was one of the four judges who co-authored the California CEB book on practice under the new law34 and who toured California lecturing the lawyers on the subject.  Judge Olson applauds the elimination of fault with its ancillary charade of lying.35  He does express concern that the Act sometimes turns family law lawyers and judges into "hair-splitting" accountants without much discretion "to do the right thing".36  Judge Olson does not urge an unfettered discretion in the court in this respect but he observes that there have been erosions by statute and case law of the strict equal division mandated by the original Act which may or may not be desirable.

Judge Bill Hogoboom was in the middle of his tenure in the domestic relations court when no-fault went into effect.  In addition to the leadership role he early assumed with his colleagues in educating California's lawyers about the Family Law Act, he is the co-author (with Justice Donald B. King) of an authoritative text on family law practice.37  He identifies economic issues as driving the criticism which has been directed at no-fault over the years. In that connection, Judge Hogoboom has indicated that periodic review of the no-fault system is clearly desirable.  While he supports efforts at rectifying some of the perceived shortcomings, such as required training for the family law bench in counties able to afford it,38 he notes that there is also a downside to some of the corrective legislation.  He has observed, for example, that the addition some years ago of a requirement that the court retain jurisdiction over spousal support in marriages of long duration39 can lead to situations where the more advantaged party has easier access to the court to ask for lower spousal support payments.  He notes that in situations where the court is more or less available on a permanent basis, it may be an opportunity for intimidation where one party says in essence "you step out of line and I'll start asking to change your support.''40

While a supporter of the overall beneficial effects of a no-fault system, Judge Hogoboom has said in a facetious way that cases under the old rules were, at least, a lot more fun.  "You heard some stuff that really got your attention."41

Two sitting appellate justices have given the subject of family law particular attention.  One is Sheila Prell Sonenshein.  She practiced first as a family law lawyer and is now an Associate Justice in the Fourth Appellate District of the California Court of Appeal.  She has spoken for her court in a number of leading opinions in the area of family law.42

Justice Sonenshein supports the no-fault system under the Act because assigning and punishing emotional blame are irrelevant considerations to the concern of economics.43  However, she views no-fault only as equitable when the parties have access to, and are held accountable for, the economics of their relationship.  Thus, she is a strong supporter of more recent laws requiring full disclosure of assets, defining the relationship between spouses as a fiduciary one and providing remedies in cases of breach.44  Justice Sonenshein has commented on the practical implications in a divorce setting of a society where structural inequality between men and women exists in salaries, opportunities, credit, child-rearing responsibilities and the like.  She sees the need for having balancing elements provided by statute.  She observes that "equal division" doesn't necessarily result in equity.45  Justice Sonenshein believes that continued thoughtful consideration of these important matters is essential to achieving a fair and workable divorce system in California.

Justice Donald B. King46 has not only authored important opinions in the field of family law47 and provided an authoritative view of the current state of the law through his other writings,48 he has been an outspoken critic of legislative amendments to the Act, particularly in the rules on child support.

Recent changes in the Act have reduced substantially the discretion which trial courts previously had in ordering child support.49  Justice King believes that the approach taken by the Legislature is wrong and that judicial discretion is a vital component in administering an equitable support system. He said this in a child support case which was appealed to his court:

"We cannot conclude without commenting about what the Legislature has done in adopting California's child support statutes.  These statutes were adopted under the compulsion of federal law requiring each state to adopt child support guidelines which create a rebuttable presumption that the amount established by the guideline is correct, although the presumption can be rebutted and a different amount ordered if there is a finding in writing or on the record that the application of the guidelines would be unjust or inappropriate. (42 U.S.C., §667.)

"Instead of adopting a guideline, California's Legislature adopted an algebraic formula to calculate the presumptively correct amount of child support which will usually require the use of a computer and a software program to determine the amount of child support under the formula.  There is no way the parties can understand how the court determined the amount ordered.  This is particularly true as to parties in child support proceedings - well over 50 percent - who are unrepresented by counsel because they cannot afford to be represented by counsel.

"These are proceedings where emotions and the level of conflict are already running high.  A bad situation becomes more inflamed when an order for child support is calculated in a manner which the parties do not understand.

"Indeed, the entire statutory scheme appears to be an unprecedented effort by the Legislature to micromanage child support hearings and determinations in manner which was neither contemplated nor required by federal law.  The result is a process of determining child support which is complex and unduly costly, which requires the use of a computer and which is not understood by anyone, lest of all the affected parties.  There is no way that either the payor or the recipient of child support, even if represented by counsel, can comprehend how the court determined the amount ordered.  As the trial court stated during the course of one of the seven separate hearings in this case: 'I guess you're pointing up the absurdity of the legislative efforts in this area, aren't you?  How do we get to these guys?  Maybe somebody [who] authored this bill should explain it."50

Justice King commented in a footnote that the trial judge's notion that an informed explanation of the rules could come from the Legislature was unrealistic ["No legislator can explain it.  In the late spring of 1992, when the bill enacting the present child support statute to be operative July 1, 1992, was being passed by the Legislature, the author, and then other legislators, were invited to attend the annual Family Law and Procedure Institute to discuss it with California's family law judges.  All declined, and one was frank enough to state no legislator would accept an invitation to discuss the statute because no legislator understood it.'']51

The views of Justice King are not the result of his exasperation with the poor state of the record in an isolated case.  He has identified a widespread problem which not only directly affects many California parents and children but also influences the perception of the public as to how we deal with an important social and economic issue:

"What was once a short, simple, inexpensive process, easily understood and accepted by the participants, has become an increasingly costly and confusing nightmare.  This process previously occupied little court time, but it is now so complicated, especially for the increasing number of parties representing themselves, that it now occupies considerable amounts of court time in an already overburdened court system.

"We pride ourselves on a system of justice, especially in family law cases.  In a just system, parents being ordered to pay or receive child support deserve to know how the amount of the support was arrived at and that the process used is one that is fair and reasonable to both the payor and the payee.  This would not only make it more likely that the order will he complied with, but it would also eliminate the amount ordered for child support as a source of ongoing conflict between the parents, the fallout from which is clearly harmful to the child.  It is indeed unfortunate that the Legislature, in its efforts to micromanage child support, lost sight of how important it is that the parents understand and accept the fairness of the calculation.  Without this, the payor always believes the amount ordered is inappropriately high, and the payee believes it is too low, leaving the parents with unnecessary ongoing conflict indisputably detrimental to the child."52

The effect that the mandated child support increases have on spousal support also did not escape Justice King's scrutiny:

"We conclude our comments on the child support statute by mentioning its effect on the ordering of spousal support.  Given the significant increase in the proportion of the payor's income now ordered for child support, the Legislature has virtually eliminated orders for spousal support in all but higher income cases, if the parties have minor children.  Although this was unintended and probably never contemplated by the Legislature, the fact is that after the order for the amount payable as child support the payor simply does not have sufficient income left to permit spousal support to be ordered paid.”53

This judicial broadside concluded with the admonition that since each family law case is unique, the courts must have the ability to exercise discretion to achieve fairness and equity.54

The attention given by Justice King to the administration of a sensible child and spousal support system under the Act rightly focuses attention on issues other than no-fault and property division, of course.  Yet, recent litigation also confirms the fact that even when we thought we knew that California is a no-fault state, some litigants are still unwilling to take "yes" for an answer.  It took an appeal to convince one husband that his allegation that he would not have married his wife except for her misrepresentation that she loved him and was sexually attracted to him is incompatible with California's no-fault divorce law.55

It is appropriate to conclude this overview of the California experience in divorce reform with some commentaries by those who are not part of the legal system.  The legislature which passed the law, the practicing lawyers, and the judges who interpret the law, may well have insights which are indispensable to an evaluation of the merits or shortcomings of the system.  It is, however, to the scholars that we customarily look for empirical data untainted by charges of bias or of special pleading.

The Scholars' View

A ten year study of the effects of the no-fault system in California was published by Lenore J. Weitzman in 1985.56  Professor Weitzman's work received widespread attention, as it deserved.  Her findings showed that the no-fault system did little to ameliorate significant inequities to wives and mothers in the economic fallout after divorce.  She identified major shortcomings in the area of spousal support, child support and property division.  Professor Weitzman served on the task force which advised the California Senate in 1985 on how women and children might be helped to secure a fairer share of so-called "family equity."  A number of statutory changes which were made in the governing law mirror recommendations made by Professor Weitzman in her seminal book.57

Some commentators have noted that while broad societal changes supplied the pressure for a change in divorce law, the actual mechanics of achieving change were not neutral.58  One writer has put the point this way: the Act was passed at the behest of male interest lobbying groups by a male-dominated legislature under the guidance of a divorcing man (Assemblyman Hayes) who had a personal interest in reducing the negotiating power of married women.59  Clearly, the perceptions differ and the collected evidence does not point in one direction only.  There is a body of support for the proposition that women are not worse off since no-fault divorce.60  It seems, however, that while more recent work may view Professor Weitzman's original findings as overstated, there is a consensus that women are disadvantaged by divorce to a greater degree than men.61  The main point of most critics of the system is that the legislature and the courts have failed to adequately address the concept of "human capital" or earning capacity, i.e., property division or spousal support do not make sufficient adjustments for depreciation in the earning capacity of a spouse who stays out of the labor market to benefit the marriage.62  The solutions to the problems identified are varied. One writer suggests that the answer in a no-fault context lies in requiring mutual consent to divorce; if termination of the marriage is in the interest of only one spouse, that spouse should compensate the other.  The writer recommends that courts should primarily look to ameliorate the decrease in value of the human capital of the spouse who invests directly in the other's career or in the assets of the marriage.63  Some of these ideas have found their way into California law.64

Whether one supports one or another of the proposed remedies it is apparent that we will continue to see activity and foment in the economic arena of divorce.  We can expect to witness a continuing effort by interested parties to secure legislative action in areas which are predicated on divorce economics.

Conclusion

The emphasis in this article on no-fault and the economic effects of the Act should not be taken as an indication that other major concerns of divorcing couples were ignored by the Legislature.

One must take account of the changes made by the Act in the field of child custody.  The Legislature made an effort to limit the power of the court to award custody to persons other than a parent.  The Act established priorities, with the first priority being awarded to one parent or the other according to the best interest of the child.  The Act retained, however, the preference for maternal custody of a child of tender years.  In 1972 an amendment to the Act eliminated that maternal preference and later years have seen a number of significant further amendments in the statutory custody and visitation provisions, many of them concerned with rules on joint custody, jurisdictional issues, and enlarging the visitation rights of non-parents.65  The Legislature has also recently articulated a statutory scheme to repair inequitable property or support awards resulting from a litigant's misconduct.66

The results of the last 25 years under the Family Law Act show some gains.  We have eliminated much of the rhetoric and identified some of-the root problems in administering a fair and equitable system of divorce law.  Yet, there is clearly still much to accomplish.  As we apply a clearer lens to the economic and other issues which generate controversy, we are likely to reach better solutions to some of the most troublesome social concerns of our time.

Ovvie Miller is a partner in the Beverly Hills firm of Rosenfeld, Meyer Susman where he specializes in family law and practices occasional civil litigation.

Our Litigation Department specializes in civil litigation at all levels of the judiciary, and has wide-ranging experience in litigating business, commercial and entertainment-industry related matters. We have extensive experience in accounting and partnership, antitrust, and securities and corporate litigation. Additional areas of emphasis include copyright and intellectual property, real estate and products liability litigation as well as in the appellate practice.

Rosenfeld, Meyer & Susman was founded in 1957.  The Firm’s areas of expertise include: Labor and Employment Law, Litigation, Corporate, Entertainment, Trusts and Estates, Taxation, Family Law, Insurance Coverage and Defense, Real Estate and Employee Benefits.

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