Journal of Criminal Law and Criminology Volume 10|Issue 3 Article 12 1920 Social Aspects of the Family Court Charles W. Hoffman Follow this and additional works at:https://scholarlycommons.law.northwestern.edu/jclc Part of theCriminal Law Commons,Criminology Commons, and theCriminology and Criminal Justice Commons Recommended Citation Charles W. Hoffman, Social Aspects of the Family Court, 10 J. Am. Inst. Crim. L. & Criminology 409 (May 1919 to February 1920) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. SOCIAL ASPECTS OF TUE FAMILY COURT' 2 CHARLES W. HOFFMAN The Department of Commerce, through the Bureau of Census, has recently published a report on Marriage and Divorce for the year 1916. This report discloses that 112,036 divorces were granted, show- ing an increase of 55.5 per cent in 1916 over the year 1906, which is higher than the percentage of increase in population. The report is undoubtedly free from any serious errors and affords reliable informa- tion in respect to marriage and divorce in so fat as it is revealed by official records. In respect, however, to its affording data upon which Congress may act in formulating uniform marriage and divorce laws, it is misleading and unreliable. No scientific inquiry has ever been made as to the cause of divorce. The divorce codes provide that certain acts of either one or the other of the parties shall be sufficient to warrant the dissolution of the marital ties. The report groups the causes of divorce under a few broad heads, such as: Adultery, Cruelty, Desertion, Drunkenness, Neglect to Provide, Combinations of the.Preceding Causes, etc., and All Other Causes. Under each of these headings, except that of adultery, there are numerous subdivi- sions. It is evident that in this report the symptoms only of "family dissensions are considered and no attempt made to classify basic causes; nothing is revealed as to the social, psychological and path- ological conditions that impelled behavior leading to divorce. Even if it be conceded that the usual statutory grounds for divorce are merely symptomatic, yet the report is misleading still in that the number of cases listed under the various headings and as shown by court records is not true in fact. The court records show that 12,486 decrees were granted on the grounds of adultery; of this number, 5,636 decrees were granted to the wife and 6,850 to the husband. A survey of the methods of administering the divorce laws would reveal that if the real cause of divorce had been disclosed at the hearing, there would have been a far greater number of cases on this ground than is shown by court records. There are thousands of cases in which gross neglect, desertion, or extreme cruelty is alleged in the 'Read before the eleventh annual meeting of the American Institute of Criminal Law and Criminology, Boston, Mass., September 3, 1919. 2judge of the Court of Domestic relations, Cincinnati, Ohio. CHARLES W. HOFFMAN complaint, while the real cause of action is that of adultery. It is of frequent occurrence that lawyers request the court to hear cases on a fictitious issue, that no stigma may be placed on the parties or their children. Verified facts are of as vital importance in dealing with marriage and divorce laws as in any other line of scientific inquiry. It is probable that there are three times as many cases for divorce on the ground of adultery than the number stated in the report, and in addition to this there are thousands of decrees granted on some ground other than that of adultery in which the evidence does not show facts amounting to adultery, but which does disclose that the true cause of complaint is the transference of the affections of either the husband or the .wife to another with whom "association" and "intimacy" is charged. In these cases a decree is granted usually on the ground of extreme cruelty or gross neglect. If, as shown by the report, there are multiplied thousands of homes broken every year by reason of marital infidelity; if there are numberless men and women subjected to the disfavor of society and to mental conflicts that make for anti-social conduct, and if, too, as we may rightfully assume, there are thousands of cases of this kind that do not- reach the courts, is it not important that the real causes of marital infidelity be known in the consideration of marriage and divorce laws? It is true that unfaithfulness on the part of one of the parties may have occurred, but the records of the Cincinnati court will show that the other party is not always free from fault and that the w'ihole trouble arises in many instances by reason of psycho-pathologic con- ditions. Biological laws cannot be effectively controlled or restrained by legal enactment, and the earlier this truth is realized by legislators the earlier we will have sane modifications of our social, marriage and divorce codes. "Mere legal prescriptions and prohibitions have little effect," says Henry C. -Corrence, "on the inner life, though they may secure an external and often hypocritical recognition." The report says that of the 108,702 divorces of which a record has been obtained, 33,809 were granted to the husband and 74,893 to the wife. From this we would infer that man is more anti-social in his marital relations than woman. This, again, is not true in fact. Of the 108,702 cases, only 14,779 were contested, and it is stated that in many of these the contest did not go beyond the filing of an answer. 3"Divorce and the Church," by Henry C. Corrence, International Journal of Ethics-July, 1919. THE FAMILY COURT 411 In cases in which investigations have been made, it has been found that in at least 75 per cent of the cases the defendant has a good defense and that the plaintiff has no more valid grounds for divorce than the defendant. In approximately two-thirds of the cases the wife is the plaintiff. An intensive investigation of these cases would show beyond doubt that divorces are granted in cases in which the plaintiff is in fact the offender, in cases where both parties are equally at fault, and in cases in which there is no legal ground for divorce at all. The census report furnishes no data from which any conclusion can be deduced as to the relative ability of men and women to abide by the rules prescribed by the marriage relation. There is a great amount of unhappiness caused by unfortunate marriage relationships and the subsequent dissolution of this relationship. Nearly a quarter of a million of men and women were directly involved in divorce cases in 1916. Thousands of children were either directly or indi- rectly affected; children who in a great percentage of the cases become victims of dependency or delinquency. In view of this social condition, shall we consider divorce a detriment or a benefit to society? Has the sum of human happiness been increased or decreased by reason of 112,036 divorces? Is it possible to answer these questions when we have no reliable, exact, scientific information as to the cause of this undesirable social con- dition? The divorce codes are the products of opinions based on premises that have no foundation in fact. Ancient texts that should be con- sidered only in the light of conditions that existed in centuries long past have made it possible in one state to provide that under no con- ditions shall man and wife be "put asunder." Other states, approach- ing the opposite extreme, have cleared the avenues of divorce from practically all obstructions, making separation as free and easy as marriage, thus rendering the monogamous institution nugatory. The divorce codes are not administered so much in the light of the law as prescribed by the statute, but rather in the light of the philosophy of the bench, the bar and the community concerning mar- riage and divorce. "This man and woman will never again live to- gether, therefore a divorce should be granted." "Is it right to compel a woman to live with such a man?" These are stock phrases heard in every divorce court and urged regardless of the absence of any evidence warranting a divorce under the law. The procedure in divorce cases, at no place, permits the consideration of "social values" 412 CHARLES W. HOFFMAN or "social evidence," and the children in such cases are generally dis- posed of as perfunctorily as chattel property in a replevin suit. The marriage and divorce laws are such that at present a man and woman, irrespective of any congenital, mental or physical defect, may marry and be divorced; they may marry and be divorced several times, perhaps each time producing defective or sub-normal children. As in criminal cases, the man and the woman are always con- sidered normal and responsible, and the divorce is granted ostensibly because of extreme cruelty, or desertion, or adultery, or some other statutory ground. It is but another instance of our legal procedure permitting the consideration of an act only and not of the party. If the object of marriage and divorce laws is to maintain the integrity of the family as an institution, they fail in their purpose in that they do not prevent the formation of marital relationships that must certainly and inevitably react disastrously on society, and that in the dissolution of the marital ties and the consequent disruption of the family they do not protect children or provide against the parties again offending society, if in fact society has been offended. At this time we have no suggestions to make as to any change that should be made in the marriage and divorce laws. It is not the purpose of the Family Court to advance theories, but to investigate and ascertain facts upon which sane modifications may be based. The Family Court proposes to state the marriage and divorce problem, leaving it for' other institutions to solve. It is evident that as a political or social policy the avenues of marriage must be kept free of all unnecessary obstructions and that monogamous marriage as an institution be fortified and maintained. This does not presuppose, however, that the mentally and physically incompetent shall contract unions that will result in a train of misery and wretchedness, and that marriage ties should not be severed when the interests of society and the individual demand it. The frequency with which the marriage and divorce codes permit divorce and imme- diate remarriage tends to break down the monogamous institution. In almost every State there has been a tremendous increase in the past year in the ntqmber of divorce cases filed and decrees granted; it is evident that this does not make for the permanence and exclusive- ness of the marriage relation, nor does it preserve the integrity of the monogamous union, the only form of marriage consistent with the existing social, moral and religious ideals of civilized life. Under the powerful sanctions of morality and religion in days comparatively recent, the wife was under the complete domination and subjection THE FAMILY COURT 413 of the husband. Today the status of women in society is changing; in fact, has changed, and she is now assuming her place in the world's activities. She is demanding, too, that her position in the family shall in all respects be equal to that of the husband. The principle of sub- jection in the American home is breaking down; harmony can no longer be preserved by the dominating will and command of one member of the household, be it either the husband or the wife. "If marriage harmony was rare," says Corrence, "when difficulties were smoothed by the submission of one mind to another, the independence of the modern woman will make it rarer still." In the future there must be some element other than that of physical gratification in the marriage relation. The spiritual or higher life of both men and women of this day is demanding expression, and if by reason of lack of judg- ment, or yielding to transient impulses, a man and woman find, after marriage, that they have made a mistake, they will no longer submit in a spirit of self-abnegation and sacrifice to lifelong misery and un- happiness. The determination of men and women to be relieved of that which they believe to be intolerable marital conditions places a pre- mium on fraud and perjury, which is found in greater or less degree in at least 70 per cent of the divorce cases, and encourages cruelty, neglect and infidelity, as they lead to the way of marital liberation. It will not suffice to ascribe the increase of divorces to the dis- turbance of family relations incident to the war. There are many cases, it is true, of returning soldiers filing suits for divorce, but this is merely an incident and not the essential cause of the widespread dissatisfaction that now prevails in hundreds of thousands of families. Monogamy as an institution is threatened because we refuse to recog- nize changing conditions. It is possible to increase beyond measure the sum of human happiness, to promote the ideal toward which numberless men and women are striving, and at the same time pre- serve intact the monogamous marriage, the greatest of all social and civilizing forces. We can no longer, without danger to society and the state, and to all that elevates, ennobles and refines, penalize for life a man and woman who are guilty of proven incompatability. It is said in a review in the New Republic that Dr. Scott, of the University of Glasgow, advises the rebellious to let their bonds be their sinews, their disadvantages be their opportunities, and to learn to love the bars of their prison like walls of their home. While reading this we seem to hear the echoes of the dark ages. Monogamy of the fu- ture will look beyond the mere physical relations toward these higher CHARLES W. HOFFMAN relations compatible with the fullest development of intellectual, moral and affective qualities. Today the relaxation of the marriage laws and the frequency of divorce in many States has invoked the criticism of the English social workers and created righteous indignation among the reactionaries. Not solely on the ground that divorces are granted for trivial causes, but because of the frequency with which divorces are granted to the same person. The parties in numberless cases contract to marry before the divorce has been granted. ,This is wholly inconsistent with all sound methods of legal or social control of marriage. It favors experimentation in the most important of all relationships and results in ,social chaos and scandal. In a city of one of the Southwestern States a judge grants a divorce in all cases, holding that the mere fact of the filing of the complaint is sufficient to warrant a decree. In another city a judge has said that he has heard and decided as many as 900 cases in 30 days. These are not exceptional instances. There are few divorce applications refused in any jurisdiction; all are granted without any investigations as to the family conditions or any consideration of the clear right of children to be protected, or any inquiry as to the truth of the charges or the basic cause of the separation, or the physical or mental conditions of the parties so essential in determining whether the parties should be permitted to again assume the marriage obliga- tions. Monogamy is not recognized or sustained by such a procedure, but by reason thereof respect for law is minimized; divorce and divorce courts are mentioned in a vein of coarse humor; men and women and children and society are sacrificed by fraud and perjury. We have dwelt on divorce as a social problem because it will be found that in a majority of divorce cases the real cause that brought the parties -into the court has its origin in childhood and the family, and for the further reason that the anti-social conduct involved in divorce cases is easily correlated with anti-social behavior in all other courts. The criminal courts have jurisdiction in cases of adultery, extreme cruelty, desertion, neglect to provide, bigamy and practically all cases that are set forth in the codes as grounds for divorce. In divorce cases therefore a study may be made of the elements of anti- social conduct that are involved. The Family Court, where properly organized and authorized by law, is the only institution that can con- sider the family as a unit and trace conduct to its familial relation- ships. It is the only source from which reliable information can be THE FAMILY COURT 415 obtained by Congress or other legislative bodies when considering changes in social codes. The Cincinnati Court of Domestic Relations does not claim that the data it has accumulated is so exact as to warrant the deduction of final scientific truths; it does hold, however, that the data indi- cates a necessary line of inquiry. The records of the court reveal that a psychological situation or psycho-pathological condition exists in approximately 75 per cent of the cases, and that the true cause of divorce is seldom alleged in the complaint. It has been found that the percentage of feeble-minded who appear in the divorce division of the court is as great if not greater than that of the Juvenile and Criminal Courts. Cruelty is often alleged in divorce petitions, but the cruelty in many cases consists on the insistence of unusual sex practices, origi- nating during childhood. Desertion and gross neglect and failure to provide have their origin in a majority of cases in causes known only to the man and the woman. Husbands are charged with cruelty which it is alleged resulted in the impairment of the wife's health, such as nervous prostration, hysteria and other psycho neuroses. Med- ical authorities assert that it is seldom that the origin of this deplorab.le condition is caused by cruelty such as the defendant is charged with in the complaint. In the 1,200 cases heard in the Cincinnati court, confidential statements have been made by one, and in some instances by both, of the parties concerning conditions not revealed in the hear- ing of the case. In many of these cases the authenticity of the state- ments has been confirmed beyond a doubt; a few instances of fetich- ism, sadism, masochism and homo-sexualism have been found, but in addition to these, throughout these statements are instances of un- usual sex behavior, such as are described in the works of Thinot, Havelock Ellis, Freud, Kr-4ft-Ebing and other writers. Eliminating the possible fact that the parties have not in every case spoken the truth, yet it is very probable that the data as contained in these state- ments is as reliable, and certainly it is more voluminous, than that upon which Havelock Ellis and other authors have based their con- clusions. We do not mean to assert that social donditions, as distinguished from sex irregularities and their incidents, are not frequent causes of family disruptions. In a paper entitled, "Durable Monogamous Wed- lock," appearing in the journal of American Sociology, Prof. J. E. Cutler, of Western Reserve University, has shown the effect of hous- ing conditions, sanitation, hygiene, wages, and the changing status of 416 CHARLES W. HOFFMAN women on marital life. All these must be considered in connection with pathological conditions in making a scientific diagnosis of family disintegration and in any revision of marriage or divorce codes that may be considered advisable. In 30 to 40 per cent of the divorce cases in the Hamilton County Court a record of the family has been found in the Juvenile Division. In both divisions, Juvenile and Divorce, the same problems are present. It is evident that it is not possible to solve problems relating to the family by a court of divided jurisdiction. It is imperative that these matters shall be handled by a single court whose functions are more of an administrative than a judicial nature. It must be founded on the same principle as that upon which the Juvenile Court is con- structed. Social workers, I believe, are unanimous upon this point; it remains for the legal profession to devise ways and means by which such a court can be organized and meet all constitutional ob- jections. The Family Court, as defined in the resolutions of the National Probation Association of the years 1917, 1918 and 1919, is an ex- tension of the principle upon which the Juvenile Courts are founded. It is the purpose of those interested in social welfare to provide for the consideration of all matters relating to the family in one Court of exclusive jurisdiction, in which the same methods of procedure shall prevail as in the Juvenile Court and in which it will be possible to con- sider social evidence as distinguished from legal evidence. In fact, providing for a Family Court is no more than increasing the juris- diction of the Juvenile Court and designating it by the more com- prehensive term of "Family Court." A brief discussion of the purpose of the Juvenile Courts and the legal principles upon which they are organized will make clearer probably the principle upon which Family Courts must be organized, if they are to qontribute to the solution of social and family problems. The Children's Codes of the last two decades are a part of the program more or less clearly stated but well understood by all social workers for the conservation of children. In these codes the jurisdiction in children's cases of justices of the Peace, Police Courts, and courts of general criminal jurisdiction has been abolished and a Juvenile Court created. A judge of the Court of Common Pleas, the Circuit Court, or, as termed in some States, the Supreme Court, may be designated as the judge of the Juvenile Court, but his function is strictly prescribed by law and different from that of a judge of other courts. THE FAMILY COURT 417 The Juvenile Court is the administrative agency provided by law for the purpose of taking charge of children who fall into error or who become'dependent. Some social agency or institution other than a Juvenile Court might have been provided by law for the same pur- pose, and as against this law there could have been no valid objections. The judge is the chief officer of the Juvenile Court; his duties are administrative with the exception that in determining the right of parents to the guardianship of their children he acts in a quasi judicial capacity. The courts, as stated, were deprived of jurisdiction in the judicial sense in children's cases, and with the exception mentioned, the judge of a Juvenile Court has no judicial function in respect to children greater than that formerly possessed by the trustees of a township. It is possible for a Board of Children's Commissioners to care for delinquent and dependent children as efficiently as a Juvenile Court. When the work of the Juvenile Court passes to such a board or some social agency, the people will realize that the State has determined to save all children, and that none, however great the offense, shall be lost through vindictiveness and hate. That the State has the power to protect and aid children who are homeless or destitute or whose conduct is such that unless checked will become a menace to society, is a legal principle that has never been doubted or denied in any judicial opinion or statutory enactment. It has never been incident to this age-old principle of law that there must be a trial or any judicial procedure as commonly understood before a child could be protected and aided by the State. The law on both these propositions has always been clear and easily- understood, yet no principle of legal or social policy has received less recognition by the public or by those charged with its execution. Dur- ing the long history of chancery jurisprudence in England the com- mon law courts were indicting, convicting, sentencing and executing and imprisoning children with as little consideration for their helpless- ness and suffering as that given to the victims of the Spanish Inquisi- tion. It is not only in the novels of Dickens, but in the literary produc- tions of writers of early times, that the inhumanitj of the English com- mon law procedure against children is portrayed. The "poor laws" of old England were nearly as barbarous as those that applied to offenders against the law, hence the Chancery Court had comparatively little business. The Criminal Court was the institution through which the populace could give vent to its feelings of hostility against an offending child, and this institution, with but few of its harsher fea-