Johnstone, Quintin

English

University of Chicago Law School: Chicago Unbound

THE UNIVERSITY OF CHICAGO LAW REVIEWFamily Cases in Court. By Maxine Boord Virtue. Durham: Duke UniversityPress, 1956. Pp. xxxvii, 290. $4.00.The role of the courts in divorce cases raises troublesome questions concern-ing which there is much difference of opinion. To what extent should the courtsseek to aid divorce litigants in solving family problems beyond mere adjudicationof status and property rights within the narrow limits of adversary proceedings?Should such aid be given if one or both spouses do not want it? Is an expandedcourt role in divorce worth the expense, considering the limited financial re-sources of local government and the pressures on it to expand other costly serv-ices? Should the jurisdiction of divorce courts be broadened to include all legalproblems of disorganized families? Should the existing disparity between formallegal divorce doctrine and its judicial application be continued?The controversy over the role of divorce courts is reflected in the variationsamong these courts in function and organization. Mrs. Virtue's book illustratesthese variations with studies of divorce court operations in some importantcities: long studies of Chicago, San Francisco and Indianapolis courts; shorterones of courts in Toledo, Milwaukee, Cincinnati, Detroit and Ann Arbor. Mostof the data for these studies was obtained by Mrs. Virtue from interviews andobservations conducted in the cities concerned. The studies show that somecourts dispose of divorce cases as they do other kinds of civil litigation-on thepleadings, evidence, stipulations and defaults of the parties. The courts' role ismerely that of deciding issues submitted by the parties on evidence they pre-sent, and steps are taken to enforce a decree only when a party requests it. Butthe studies disclose that some courts do more than this, and others do muchmore. To increase the likelihood of prompt payment and to facilitate proof onthe issue of payment, some courts require that all support and alimony first bepaid into court and then the court disburses it. Indianapolis courts disburse al-most two million dollars a year under this system. In a few areas, the courts eventake the initiative in applying sanctions for non-payment. Because of the no-torious inaccuracy of evidence presented by parties to divorce cases, some courtssupplement this evidence with facts obtained by court employed investigators,a practice most common when child custody is involved. It is common for somedivorce courts to advise a divorcing mother on the consequences of not seekingalimony or child support, such as the possible necessity of the mother workingor securing welfare assistance. Many judges make efforts to screen-out cases inwhich there appear to be reconciliation possibilities and encourage reconciliationof spouses by private conferences in chambers or by referral to religious ad-visors or marriage counselors. Marriage counseling services are offered by a fewdivorce courts, notably the famous family court in Toledo. The Toledo court'smarriage counselors are available to both litigants and non-litigants.In addition to illustrating variations in the role of divorce courts, Mrs. Virtue'sstudies contain sufficient data for generalizing as to conditions that tend to re-[VOL 24BOOK REVIEWSstrict that role. The most important restricting condition is the mass characterof divorce litigation. Everywhere divorce volume is heavy, amounting to over50 per cent of the cases filed in many trial courts. Thorough individual consid-eration of the complex behavioral problems inherent in each divorce case cannotbe attempted by the courts without very substantial staff increases. Even mosturban courts which perform a minimum role in divorce are so understaffed thatlong delays persist in the disposition of divorce cases. Courtroom facilities insome places, including Chicago and Indianapolis, are so cramped and crowdedas to make divorce adjudication difficult. The mass pressure is similar in crimeand mental illness, two other behavioral areas in which the courts often play asignificant but unsatisfactory part. The nature of the divorce bench is anothercondition tending to restrict the role of the divorce courts. With occasionalstriking exceptions, the interests and backgrounds of divorce judges are notconducive to divorce courts assuming broad roles. The Virtue studies show thatjudges generally dislike hearing divorce matters, and in many large cities divorcecourt assignments are rotated frequently. In addition, legal training does notalways contribute to the judge's understanding of the tasks of social workers,marriage counselors and psychiatrists in the optimum divorce court role.Of all the divorce courts studied, Mrs. Virtue found those in Chicago leastsatisfactory. She attributes this primarily to structural and procedural defectsin Cook County courts for which a backward state supreme court is partly re-sponsible. More basic to the Chicago problem is the acute and chronic incom-petence of Cook County local government that pervades even the courts.In the last chapter of her book, Mrs. Virtue makes some recommendationsfor improving divorce court operations. She believes that more judges shouldbe assigned to divorce cases, and that they should be provided proper physicalsurroundings. Courts with broad jurisdiction over family matters are desirable,but she recommends that these follow the Ohio pattern of divisions of generalcourts of first instance rather than independent family courts. Courts withoutadministrative employees to focus on non-controversial fact finding and planningshould add such employees, experimenting with their assignments until locallyacceptable procedures are developed. Separate divorce dockets and calendarsshould be established to assure that the peculiar timing problems in divorcelitigation are adequately controlled. She is uncertain about the need for special-ized divorce judges, but thinks that in each large urban center at least one judgeshould be available who has been assigned to a specialized divorce docket longenough to develop skill in solving the special problems raised by these cases.The decision to use social workers as administrative aids to divorce courts, sheasserts, should be made with caution because so few social workers are trained towork effectively in a court setting. On this point she recommends increasedcross-professional training in schools of law and social work to develop morepersons qualified to bring social work knowledge and experience to the courts.Mrs. Virtue believes that the demand for marriage counseling will increase, but1957]THE UNIVERSITY OF CHICAGO LAW REVIEWthat marriage counseling by court staff members should be restricted to liti-gants. These recommendations are all moderate, which is their merit, as theyhave wide appeal and a chance of extensive adoption in the immediate future.Sociologists and behavioral scientists have long been interested in problemsof disorganized families; but being ill-equipped to explore by themselves theoperations of courts, the work of lawyers, and the impact of social conditions onlegal doctrine, they have largely ignored these areas in studying the family.Until recently, persons with legal training also ignored them, concentratingfamily law research on conventional analysis of appellate opinions and statutes.Family Cases in Court reflects a small but encouraging trend toward broaderresearch on family law problems by legal scholars. This research is concernedwith law in its social setting, emphasizing the interrelationships of legal doc-trine, judicial administration and the practices of other social institutions. Re-search methods characteristic of social science are being used to some extent inthese efforts. In addition to the Virtue studies, the new trend is illustrated bythe recent Gellhorn report on family law administration;' the research on familylaw currently being conducted by the University of Chicago Comparative LawResearch Center, and the research planned at the Yale Law School under a re-cent grant from the National Institute of Mental Health. Work of this sort isoften more effective if done in collaboration with persons from other disciplines.Random examples of problems bearing on divorce law that merit investigationby legal scholars willing to participate in the new trend include: variations ininterest-group perspectives on the role of divorce courts; the real standards fol-lowed by trial courts in deciding child custody matters in divorce cases and thesuccess of these standards when applied; the influence of the adversary systemon judicial determinations in family law litigation; the beneficial effects, if any,of existing divorce grounds and defenses based on fault; the extent to whichdivorces are denied and the implications of this; the criteria that judges andlawyers should use in screening out cases for referral to marriage counselors;career motivations of divorce judges; handicaps to interprofessional cooperationin family law administration; possible in-training programs for divorce judgesand their staffs; and the influence of the lawyer in marital discord cases, withemphasis on the nature and practices of the divorce bar. Research on these kindsof problems gives promise of greater understanding and more useful results thanmere conventional analysis of legal doctrine, a type of research that in thefamily law field has so often been sterile. QrnNTI STONE*'Gelihorn, Children and Families in the Courts of New York City (1954).* Associate Professor of Law, Yale Law School.

Review of \u3ci\u3eFamily Cases in Court\u3c/i\u3e by Maxine Boord Virtue

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Review of \u3ci\u3eFamily Cases in Court\u3c/i\u3e by Maxine Boord Virtue

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