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NBI SEMINAR MATERIALS: Advanced Family Law Roundup

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.  I have posted the aforesaid materials over the past three weeks a here are links to all of them:


NBI SEMINAR MATERIALS: Effectively Arguing Contempt Issues

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Effectively Arguing Contempt Issues.”



Contempt is generally defined as a willful defiance of a court order or a willful failure to comply with the terms of a court order.  In a strictly technical sense, a domestic and/or family matter does not substantially differ from that of any other civil matter when it comes to contempt.  The court enters an order which lays out certain terms or instructions or directives to the parties involved in the case, and it is the responsibility of those parties to do their best to comply with the terms or instructions or directives in that order.  Failure to comply with the terms or instructions or directives in that order is to be, at least in a strictly technical sense, in contempt of that order.


Now, family court, perhaps more than any other court, is one which must be rather flexible to account for the vagaries of human behavior and the unpredictability of everyday life.  Therefore, while some orders may be strictly construed and enforced, others may allow for some flexibility in both practical application and interpretation.  So, when pursuing a contempt matter, it is best to do so judiciously and with discernment.


It is important to note that courts typically loathe to have to hear contempt actions and would much rather the parties spend the time working these issues out on their own before filing.  Therefore, before filing for contempt, please be sure to explore the options with the other party.  Sometimes a simple telephone call or email to open the lines of communication can go a long way to bring matters to a resolution without resorting to a contempt action.  Usually, a simple way to do this, at least at first, is to send a letter to the opposing party pointing out his obligation under the order and his failure to meet it, and requesting compliance within a reasonable amount of time.  Courts want to see parties make a good faith effort to resolve their differences; therefore, filing for contempt should only come after other reasonable attempts at resolution have failed.  As a corollary, and this is especially true in custody matters (described below), courts tend not to take picayune matters seriously.  If someone is violative of a court order in a minor way, especially one that resulted in no actual harm to the other party, a court is unlikely to take a contempt matter filed because of it seriously.  Sometimes a contempt matter surrounds a dispute over the interpretation of an order.  Unfortunately, even the most vigilant attorneys, judges, and jurists may write something that could be open to interpretation or does not account for every variable.  A disagreement over an interpretation is certainly something that could be resolved by a court, but if that disagreement is in good faith, it is unlikely to rise to the level of contempt.  It should be remembered that, in general, contempt actions are supposed to be corrective and not punitive; they are a safety valve to help a party receive what he is entitled to receive under a court order as opposed to a way to punish a recalcitrant person.


Contempt is approached in slightly different ways in each of the three primary areas of family law, and they are individually described below.


  • Divorce


Contempt in divorce matters generally crop up in two potentially contentious areas: discovery and the performance of a property division order.


Discovery in divorce is not much different than that of any other civil matter.  As seems unfortunately all too typical in all types of litigation, parties who receive discovery requests frequently do not respond to them in a timely fashion.  Failing to respond to discovery in a timely fashion can lead to motions to compel those responses.  A court granting a motion to compel the discovery responses typically sets out a hard deadline by which the responses must be furnished to the requesting party.  If that hard deadline is missed by the party who is to produce the discovery responses, the opposing party may proceed with a contempt action for the failure to abide by the order of the court requiring discovery to be provided by a specific date.


Now, as stated above, courts generally do not hold parties in contempt of their orders unless a party demonstrated a willful defiance of a court order.  So, if facing a contempt motion for failing to comply with a discovery order, viable defenses could, depending on the case, include, but are not limited to, things like:

  1. the items requested are impossible to produce (e.g.: they are destroyed or not in a party’s possession or have already been provided, etc);
  2. the items requested are too voluminous to produce in the time frame required;
  3. a good faith effort has been made to comply, but circumstances have resulted in untimely responses.


The other primary source of contempt litigation in the context of a divorce matter is the performance of a property division order.  A property division order can be the result of an agreement between the parties (e.g.: a Property Settlement Agreement) or by an order of a court after a hearing.  Regardless of which it is, they both effectuate the same purpose, which is to lay out how marital property is to be dealt with after the dissolution of a marriage.


A typical property division order includes provisions that identify which assets to convey, and when, from one party to the other.  As one may expect, for one reason or another, parties are not always completely compliant with the terms of a property division order.  As above, once again, a finding of contempt must include some sort of willful defiance of the order.  So, as above, defenses like impossibility or good faith may be viable.


Contempt matters involving agreements between the parties generally also involve a provision for the payment of the aggrieved party’s attorney’s fees by the party found in contempt.  As a result, it is important to avoid contempt and, if not avoided, keep the litigation to a minimum in order to ensure attorney’s fees do not accumulate.


  • Custody


Much of what has been said above applies to custody matters.  Contempt in custody matters distinguish themselves from the above as they also tend to carry a high degree of emotionality with them, are very fact dependent, and, if not used properly, descend into using the court as a referee or a life coach as opposed to a tribunal interpreting and applying the law.  Unlike divorce or support or most other areas of the law, the object of a custody order is not the parties, but a third party, namely a child (or children), and that child’s best interest is paramount.  This “best interests” standard potentially opens up times where a technical contempt is justified.


As one may expect, custody orders, among other things, lay out the times and places when a party may have custody of his child(ren), and how and when that/those child(ren) are to be transferred to the other parent.  The decision to withhold a child from the other parent, in contravention of the custody order, is one which is fraught with emotion, and the legitimacy of that decision is entirely dependent on factual circumstances.


Uncontrolled emotionality can sometimes lead to conduct that is clearly contempt of a custody order.  For example, two parents could get into an argument and, out of spite, the father then decides to withhold the child from the mother in violation of the custody order.  At other times, that emotionality can be a powerful source of strength to take the necessary action to protect a child.  For example, a father is using drugs in his home when his child is to be dropped off with him by the mother.  Considering the circumstances, the mother sees his drug use and elects not to provide the child to the father.  Both of these are technically contempt of an order as they both violate its terms, however a deeper investigation of the facts, and keeping the “best interests” standard in view, the second example above is justifiable and would probably not be contempt of the court order.


As one may expect, “best interests of the child” is a nebulous term-of-art and, therefore, interpreted all manner of ways by parents.  Before withholding a child due to “best interests,” it is important to ensure that the situation one is emotionally responding to is, actually, a “best interests” situation; clearly this is extremely fact intensive.  Watching a rated “R” movie would likely not warrant withholding a child as opposed to something much more serious like abuse, drug use, and/or neglect.


The typical contempt action in a custody matter surrounds compliance with the days and times a child is to be transferred between the parties.  As mentioned above, courts are loathe to get involved in the nitty gritty of someone’s life.  As a result, a technical contempt (i.e.: imprecision in compliance with the order) will likely not result in a finding of contempt, unless harm can be shown.  For example, if the child is to be dropped off at 8:00pm on Sunday night at father’s house by mother, but mother does not do so until 8:10pm, it is unlikely for this to result in a successful contempt action even if it is a technical violation of the order.  While this may seem ridiculous to the outside observer, nearly any custody attorney can vouch for the fact that it is not uncommon for a parent to expect such hyper-precise compliance with a custody order by the other, and finds that lack of compliance to be of grave significance.  The emotionality so often found in custody cases tends to distort a party’s perception of how such minor violations are viewed.  This is not to say that violating a custody order will never result in a finding of contempt.  For example, being significantly late, especially on habitual basis, will likely result in a finding for contempt.  Again, as mentioned above, these matters are highly fact dependent.


Custody also carries with it the vagaries of daily life that are entirely unpredictable.  All manner of things can interrupt compliance with a custody order that would not amount to contempt.  For example, failing to drop off a child at the scheduled time due to inclement weather, a traffic jam, sickness, accident, an event running long, or the like would probably not be contempt.  In fact, I think it can be said that losing track of time once or twice and being late would probably not be contempt either.  A custody arrangement is something that is embedded and intertwined with one’s life and schedule and it is important to be flexible.  Filing for contempt on a regular basis, or over minor issues, makes the filer look petty, badgering, and/or pedantic, and sometimes causes judges not to be sympathetic when a case of actual contempt arises.


Finally, some jurisdictions have such significant case backlog that a contempt action could lose its sting.  For example, if one party breaks a custody order for a few weeks straight in the month of May, the impact and significance of that violation may easily still be felt at a hearing on the matter in July.  Conversely, causing someone to miss some custody time in May, which is technically contempt of the order, seems distant and “yesterday’s news” when the hearing on the matter is not heard until November.  The practical issue of a court’s scheduling backlog should be considered when deciding whether to file for contempt.


So, when considering filing for contempt in a custody matter, it is important to do so with discretion and discernment, which accounts for one’s emotionality and the specific factual situation in which the case is found.


  • Support


Once again, as above, much of what has been said also applies to support matters.  Of the different types of family matters, support tends to be the most-straight forward.  A party (“obligor”) has an obligation to remit a certain amount of funds to the other party (“obligee”) at clearly laid out intervals (typically monthly).  Failure to meet the aforesaid obligation, in full and in a timely fashion, is to be in contempt of court.


Most support cases in Pennsylvania are enforced through a garnishment of the obligor’s paycheck.  As the support payments are, therefore, usually involuntary, contempt in a support context is not nearly as common as other areas.


Contempt in the context of support are typically in matters where someone changes employment and does not inform the Court (and, thereby, undermining the garnishment order), where someone has to personally make the payments, and/or someone fails to comply with health insurance coverage requirements.


Contempt in a support matter carries with it two unique aspects one ought to keep in mind when considering pursuing a support action.  The first is a consideration of the obligor’s ability to perform the support order.  For one reason or another, the parties in a support case are not always as vigilant as they could be in filing for the modification of a support order.  So, for example, an obligor who loses his job (and neglects to request a modification of his support obligation downward) may not, due to circumstances beyond his control, be able to satisfy his support obligation.  This sort of situation would unlikely, at least initially, lead to a finding of contempt as long as the obligor acts in good faith and makes reasonable efforts to pay child support.  The second consideration is the practical effect a finding of contempt may have on the obligor’s earning ability.  There are times where a judge will find the contempt of the support order to be so egregious that the obligor is penalized with incarceration.  While in the moment achieving some measure of justice may feel gratifying for an obligee, it is quickly realized that an obligor, in a typical case, will not be able to pay any support while incarcerated, and his ability to do so once released is diminished.  It is important to factor in the effect of incarceration on support before pursuing a contempt action in support.


  • Penalties for Contempt


There is a wide range of possible consequences for someone found in contempt in family court.  The wide range is due to the fact that some violations of an order are minor, while others are more significant, and some are habitual.  The more significant the violation, and the more habitual it is, the greater the penalty will be.  “Habitual violations” means more than just doing the same thing repeatedly over a course of time (e.g.: nearly always being late for Sunday night custody drop off), it also can mean repeatedly violating a court’s specific directive.  For example, someone may receive a mild penalty if found in contempt of a custody order for being late on a Friday night.  If, two months later, the parties are back in court again on the same issue, the penalty will likely be more severe.


Perhaps the mildest penalty will be a specific directive by a court.  So, for example, a party violating a divorce order by failing to remit a settlement check may be found in contempt and directed to furnish it to the other party on a date certain at pain of more severe sanctions upon further violations.  The Court also may award attorney’s fees to the party who filed the contempt action to be paid by the party who violated the order.  Other more severe penalties, including incarceration, are possible depending on the situation.  In custody cases, the court may award additional custody time to a parent who was deprived of his time under the order due to the other party’s violation of the custody order.  Of course, if the parties informally agree to make up time before the contempt hearing, then the impact of the contempt action is greatly diminished.


  • Cases, Rules, and Statutes to consider:
    • R.C.P. 1910.20 through Pa.R.C.P. 1910.25-6;
    • R.C.P. 1915.12;
    • 23 Pa.C.S.A. §3703;
    • 23 Pa.C.S.A. §4344;
    • 23 Pa.C.S.A. §4345;
    • 42 Pa.C.S.A. §4132;
    • 42 Pa.C.S.A. §4133;
    • Rhoades v. Pryce, 874 A.2d 148 (Pa.Super.2005);
    • Chadwick v. Janecka, C.A.3 (Pa.2002), 312 F.3d 597;
    • Sonder v. Sonder, 378 Pa.Super. 474 (Super.1988);
    • Schoffstall v. Schoffstall, 364 Pa.Super. 141 (Super.1987);
    • Durant v. Durant, 339 Pa.Super. 488 (Super.1985).


As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Ethics.”



  • Client/Lawyer Relationship


The client/lawyer relationship in a family case is unlike that relationship in any other case.  A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life.  A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these.  When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life.  As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.


There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case.  Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider.  For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value.  Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse.  Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).


Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues.  A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms.  The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items.  Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.


Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation.  Understandably, clients become extremely emotional when dealing with the custody of their children.  Sometimes clients simply cannot accept that the other parent has entered into a new relationship.  Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have.  Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent.  It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view.  The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client.  It often takes more than mere legal analysis to help a client recognize what is best for his children.


Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes.  A child will take with him for the rest of his life how his parents interacted with him and with one another.  Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely.  So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.


  • Researching and Preventing Conflicts of Interest


The issue of conflicts of interest in a family case does not significantly differ from that issue in other areas of the law.  An attorney has to be sure that he has not represented the adverse party to a client in the past before taking a client’s case.  Being diligent in maintaining one’s office records goes a long way to ensure conflicts of interests can be avoided.


Perhaps the conflict of interest issue that arises the most in family court cases is when an attorney has the opportunity to represent a parent and a grandparent (or third party) simultaneously.  There are cases where, in addition to both parents, a grandparent (or other third party) also has standing to bring a custody claim.  In those sorts of situations, it is possible to represent one of the parents and the grandparent (or other third party) simultaneously.  Now, by definition, the parent and the grandparent can be opposed in a custody case because, as there are only so many hours in a day and in a week, any custody time awarded to the parent is custody time not awarded to the grandparent, and vice versa.  In other words, representing a grandparent can be a conflict of interest to representing the parent.  Sometimes, however, a parent and a grandparent work cooperatively against the other parent.  In cases like that, the parent and grandparent can be represented by the same attorney as long as the terms of representation are explicitly laid out in the retainer agreement.  These terms include identifying who the primary decision maker is, what their respective goals are in the case, and that neither would not act to undermine the case of the other.


  • Communication with Adverse Party


Communication with an adverse party, if represented, is like any other sort of case.  Communication ought to be timely, civil, and professional.  When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues.  While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests).  As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.


Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party.  It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party.  A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters.  It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client.  So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney.  The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment.  Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client.  Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.


Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed.  As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.


  • When Your Client is Dishonest or Abusive


The attitude and demeanor of a client in any sort of case can, unfortunately, deteriorate until he becomes dishonest or abusive, and a family case is no different.  Indeed, given the level of emotions and frustration that can be present in a family case, it is not uncommon for a family client to sometimes take out that frustration on his lawyer.  As a result, it may sometimes be possible to help a client through his frustration and preserve the lawyer/client relationship.


If the relationship between client and attorney becomes intolerable, then it is incumbent upon the attorney to file a Petition For Leave to Withdraw from his representation of that client.  If the attorney is retaining the file, it must be turned over to the client if withholding it would adversely prejudice the client in his case.  Of course, throughout the withdrawal process, the seal of lawyer/client confidentiality still applies as much as practicable, so the issues raised in the Petition for Leave to Withdraw, and the subsequent hearing which may be scheduled for the same (assuming the adverse party appears at it), should reveal only the most essential issues necessary for the withdrawal.


In terms of dishonesty, if that dishonesty is between the attorney and the client, unless he has reason to know his client is being dishonest, an attorney can act upon the information provided by the client.  If the client is being dishonest with his attorney, then, ultimately, that dishonesty will likely adversely affect the client.  As with any other sort of case, an attorney cannot elicit testimony he knows will be dishonest, nor can he make representations to the court based on information he knows to be dishonest.  If honesty becomes a problem between the client and the attorney, then the attorney is best advised to withdraw from representing the client.


  • Attorneys’ Fees


An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client.  This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.


The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client.  Obviously there are no contingency in custody matters either.


Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.


  • Handling an Ethics Complaint/Grievance


Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board.  All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct.  The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.


When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board.  Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline.  As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.


The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation.  This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.


In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.


The potential discipline an attorney could receive is either private or public.  Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment.  A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management.  A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.


A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline.  Public discipline is typically imposed after a hearing.  Public discipline can only be imposed by the Supreme Court of Pennsylvania.  If an attorney is disbarred, the attorney cannot practice law at all in any way.  A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar.  Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential.  Another public discipline is suspension.  While suspended, an attorney cannot practice law.  Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply.  Finally, an attorney may be publicly censured.


The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.


As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision.  Instead, the Counsel allows for an internal review process which can be requested by a Complainant.  If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.


It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.


NBI SEMINAR MATERIALS: Advanced Child and Spousal Support Issues

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Advanced Child and Spousal Support Issues.”


  • Arguing Spousal Maintenance: What Works and What Doesn’t


Maintenance is a colloquial term that typically refers to spousal support (“SS”) and/or alimony pendente lite (“APL”) and/or alimony.  While SS and APL greatly resemble one another, they do have some distinctions.


SS is the support one spouse is obliged to provide the other one if the other one is unable to be self-supporting.  SS can be awarded without an underlying divorce matter as long as, generally speaking, the estranged spouses do not live together.  By contrast, APL is support provided by one spouse to the other, who is unable to be self-supporting, during the pendency of a divorce matter, as long as, generally speaking, the estranged spouses do not live together.


Both APL and SS are calculated using the same formula.  The payment will amount to 40% of the difference of the parties’ incomes (or 30% if the SS/APL obligor (the person who is obligated to pay support) is already paying the obligee (the person who receives the support) child support).


Many people seem to approach SS/APL as a simple issue of determining which spouse has greater income/assets and, as a result, obtaining an order requiring that spouse to remit funds to the other.  While many cases can be that simple, they do not, and often are not, have to be quite that simple.  Merely having a lower income or fewer assets does not automatically entitle one to SS/APL; the analysis is a little more complex than that.


In order to receive SS or APL one must prove the assertions made in the typical petition for the same, which generally includes:

  • that the obligee cannot support himself (and/or cannot support himself during the course of the litigation);
  • that the obligee lacks sufficient property to meet reasonable needs and expenses;
  • that the obligee cannot support himself through appropriate employment;
  • that the obligee cannot afford necessary and reasonable attorneys’ fees for the underlying case.


As one can see, the focus of the assertions made revolve around the obligee’s ability to pay for and/or afford his reasonable needs and requires the other spouse to help subsidize those needs.


The concepts of “reasonable needs” and “supporting oneself” are vague on specifics and can differ widely depending on the person.  Some people may think a Spartan lifestyle is reasonable while others think having some luxury in one’s life is not unreasonable.  When discerning what needs are (un)reasonable and whether one can be self-supporting, the first place to look would be the established marital lifestyle as a general guideline.  The needs and expenses present in one’s life, which were funded as and by a couple, do not suddenly disappear when that couple separates.  Furthermore, the cost to pay for a married couple’s decision to buy a car or a house (of whatever value), for example, does not suddenly become unreasonably expensive when that couple separates.  To put it simply: the marital bills need to get paid.  Maintaining something similar to a marital lifestyle over the course of the divorce is something which SS/APL strives toward.


Although SS/APL are to help maintain reasonable needs and/or helping someone unable to support himself, this does not mean that the potential obligee is without financial responsibility, nor does it mean that one should (or even could) be immune from the negative financial effects that divorce (or separation) inevitably brings.  The focus is on what is “reasonable.”


In order to receive SS/APL one has to demonstrate an actual need for the money.  As a result, a look at the assets and income of the person seeking SS/APL is fair game when determining whether SS/APL is appropriate.  The goal is to help maintain a standard of living that is reasonably consistent with the standard established during the marriage and if the obligee can do that without any money from a potential obligor, then SS/APL may not be warranted.  Any financial discomfort caused by the separation can be remedied through the distribution of the marital assets in divorce.


Of course, the greater the disparity of assets and income is between the parties, the greater the likelihood SS/APL will be awarded as the ability for the potential obligee to maintain a marital standard of living becomes increasingly unlikely as that disparity widens.


There are other defenses to SS/APL other than arguments surrounding the concepts of “reasonable” and/or what it means to support oneself; by contrast, these other defenses are much more straight forward, though what they lack in legal complexity, they more than make up for in a potential for emotionality.


The first defense is that the parties were never married.  Only married people can collect SS or APL.  This is an obvious defense, perhaps, but there are still some people who can claim a common law marriage and/or seek annulments, and this defense would apply to those cases.


The other defense is to raise an old fashioned “fault” argument (it must be stressed that this is only a defense to SS and not APL).  Although rather uncommon in post-modern America, the law still allows for a traditional old fashioned divorce based on marital fault (23 Pa.C.S.A. §3301(a)).  The typical marital faults include adultery, abuse, and abandonment, among others.  If it can be proved that a potential obligee committed one of these faults, then it will disqualify him from receiving SS.


  • Voluntary Impoverishment


Voluntary impoverishment, in the context of support, is typically where a potential obligor intentionally, and unreasonably, reduces his income in order to avoid his support obligation.  This would appear to be one of the ultimate acts of “cutting one’s nose off to spite his face” as the saying goes: while one is seeking a reduction in support his own actual income is reduced as well.  Regardless, there are people who try and reduce one’s support obligation by way of reducing his own income.  In the interest of justice and fair play – and in light of the fact that child support is ultimately for the bests interests of the child for which it is ordered – such a tactic will not, generally speaking, be successful in reducing one’s support obligation.  It is important to note that the operative aspect to voluntary impoverishment is the word “voluntary.”  Being laid off, or suffering an injury, or what-have-you, against one’s will does not amount to voluntary impoverishment.


There are multiple ways to reduce one’s income.  The most obvious way is to quit one’s job and remain unemployed or take a new job with a substantially lower salary/wage.  Other ways are less immediately obvious: one could reduce one’s hours or stop accepting certain tasks.  One could try and make larger contributions to a 401(k) or some other financial vehicle.


When there is an assertion that a party has engaged in voluntary impoverishment, the court looks to earning capacity.  Earning capacity is a legal determination made by a court which establishes what a party “should” be able to earn.  When determining earning capacity, factors like work history, prior income levels, and level of education are considered.  It is important to note that the court will not simply use the highest income one had and determine that to be “earning capacity.”  The court typically takes a much more pragmatic approach.  For example, if someone worked at “Employer A” ten (10) years ago making $80,000/yr but, for the last nine (9) years has worked for “Employer B” making $60,000/yr, it is unlikely the court will go back to “Employer A” to determine capacity because a work history, and a relative adjustment of lifestyle, has been shown to have occurred over the last nine (9) years.  In other words, the most recent employment is most likely to be considered a good measure of earning capacity unless it is shown that this employment was secured as way to facilitate voluntary impoverishment.  If it can be shown that an obligor engaged in voluntary impoverishment, the support obligation will be calculated according to the obligor’s assessed earning capacity.


There are times when someone does voluntarily “impoverish” oneself and it does not qualify as voluntary impoverishment as described above.  Pursuant to Pa.R.C.P. 1910.16-2(d)(1), there is a general principle that virtually no voluntary reduction of income will result in a reduction in support, but that very same rule leaves open a possibility with its use of the word “generally” (“[w]hen either party voluntarily … [reduces his income] … there generally will be no effect on the support obligation.”).  The key element is whether the reduction of income was for the purpose of circumventing a support order.  Now it hardly needs to be said that determining the motive for a reducing one’s income is extremely fact intensive and one must be prepared to prove that motive in court.


  • Enforcement Options


Enforcement of support is rather straight forward.  The vast majority of support cases are enforced through the garnishment of wages/salary.  Garnishment is preferred by the law, but it is also preferred by most people in support cases, obligee and obligor alike.  Obligees prefer it as their support payments are not dependent upon the actions of the obligor.  As one may expect, sometimes an obligor may forget, or intentionally withhold payment, or need to pay it late, and so on, and obligees do well to avoid these vagaries.  A garnishment order makes the payment of support absolutely priority over all other non-tax obligations, and avoids the temptation for an obligor to prioritize other bills over his support obligation.


The other typical method of enforcing a support order is through contempt actions for non-payment.  Contempt is, generally defined, as a willful defiance of a court order or a willful failure to comply with the terms of a court order.


Enforcement of support tends to be straight forward because the various aspects of a support case are fairly obvious and easily definable.  A party (“obligor”) has an obligation to remit a certain amount of funds to the other party (“obligee”) at clearly laid out intervals (typically monthly).  Failure to meet the aforesaid obligation, in full and in a timely fashion, is to be in contempt of court.  If an obligor fails to fulfill his obligation under a support order, the obligee can file a motion for contempt and request sanctions and enforcement.


Contempt in the context of support are typically in matters where someone changes employment and does not inform the Court (and, thereby, undermining the garnishment order), where someone has to personally make the payments, and/or someone fails to comply with health insurance coverage requirements.


Contempt in a support matter carries with it two aspects one ought to keep in mind when considering pursuing a support action.  The first is a consideration of the obligor’s ability to perform the support order.  For one reason or another, a party in a support case is not always a as vigilant as he could be in filing for the modification of a support order.  So, for example, an obligor who loses his job (and neglects to modify his support obligation downward) may not, due to circumstances beyond his control, be able to satisfy his support obligation.  This sort of situation would unlikely, at least initially, lead to a finding of contempt as long as the obligor acts in good faith and makes reasonable efforts to pay child support.  The second consideration is the practical effect a finding of contempt may have on the obligor’s earning ability.  There are times where a judge will find the contempt of the support order to be so egregious that the obligor is penalized with incarceration.  While in the moment achieving some measure of justice may feel gratifying for an obligee, it is quickly realized that an obligor, in a typical case, will not be able to pay any support while incarcerated, and his ability to do so once released is diminished.  It is important to factor in the effect of incarceration on support before pursuing a contempt action in support.


  • Support Modification Procedures and Tactics


In order to modify a support order, the person seeking modification must file a Petition to Modify with the family court.


A modification of support will only be ordered if the person seeking the modification can demonstrate that there has been a change in circumstances since the most recent support order was entered.  Changes in circumstances can include: a change in employment status, a change in jobs, establishing a new cohabitating relationship, the birth of a new child, changes to health insurance coverage, and/or changes to extracurricular activities for the children, among other things.  If a party is trying to resist modification, attempting to demonstrate that there has been no change in circumstance is, if successful, a viable way to accomplish that goal.


A Petition to Modify is first heard by a support conference officer who receives the information provided by the parties and enters an order based on that information accordingly.  The conference officer is not a master or a judge, so very little argument or advocacy will be possible at this point.  The support officer will merely receive paperwork and enter the data into his computer software to produce a proposed support order.  If a party is unhappy with the support order proposed by the conference officer, he can request a hearing before a master.  While a support master is not a judge, he is like a judge in that he holds a hearing that resembles a court hearing, and receives testimony and evidence as a judge would.  It is at a master’s hearing that traditional court advocacy can occur.  A master’s hearing can include the testimony, examination, and cross-examination of witnesses, the presentation of documents and evidence, and arguments.  Upon reviewing all of the evidence and testimony presented at the hearing, the support master issues a support order.  The support master’s order becomes a final order in support unless, by the established deadline, one party files exceptions to that order.  The exceptions function like an appeal and are heard by a judge.  The judge does not hold a support hearing to resolve the exceptions.  Rather, the judge hears oral arguments as to whether the support master committed an error of law and/or fact.  If the master did commit an error, the judge may enter a new support order taking the error into account, or simply remand the matter back to the master for a new hearing in order to remedy the errors at the prior master’s hearing.


Pursuing the modification of a support order is nearly identical to securing an original order (with exception of having to show a change in circumstances).  The parties must ensure the court is presented with accurate incomes and expenses for both parties based on which a support order may be entered.


  • Support Termination: When and How


When a typical support case terminates is fairly clear.  When it comes to SS or APL orders, the date of divorce is the date that they will terminate.  For child support, when the child turns eighteen (18) or graduates from high school (whichever is later) will be the date it terminates (unless the parties have agreed in writing to another date after age eighteen (18)).


Typically, when the eighteenth birthday of a child subject to a support order nears, the court will issue a letter inquiring as to when the child will emancipated (i.e.: turn eighteen (18) or graduate from high school).  The obligee is to respond to this letter and confirm the termination of the support order upon emancipation.  Unfortunately, courts tend to be overburdened (and do not send the letter in a timely fashion) and/or obligees uncooperative (and do not respond to the letter), as a result it is wise for obligors to file a Petition to Terminate support.  This should be filed sufficiently before the emancipation date in order to avoid an over payment.  At a hearing for a Petition to Terminate, the obligor must demonstrate that the child for whom support is being paid has been (or will be) emancipated.


There are cases where support can extend beyond traditional emancipation.  One way it can last beyond traditional emancipation is if there is an agreement between the parties to do that.  Another way is to demonstrate that the child for which support is being sought is disabled in some way which causes him to be unable to sustain himself as an adult.  In order to demonstrate disability, the obligee must present evidence from physicians and/or a mental health professional (and the like) to prove that the adult child needs continued support due to a disability.  Aside from an agreement or disability, an obligee can pursue college costs and tuition from an obligor for a child beyond the age of emancipation.  Now, as he is an adult, the child must provide written consent for his parent to pursue tuition from the other and/or file a claim on his own for it.  When looking at a case regarding post-secondary education, the court considers factors like: (1) whether the child made reasonable efforts to secure scholarships and grants (and whether he got them); (2) the financial resources of the parties and student; (3) the student’s interest and willingness in completing the course of study; (4) the estrangement (if any) between the child and the obligor; and, (5) the child’s employment status, and so on.  Clearly, this sort of support is highly fact intensive, and is based on what seems reasonable in consideration of all the factors above.  In any of these situations, if an obligor believes that the order should be terminated, he is free to file a Petition to Terminate and advocate for that.


Finally, it should be noted that even though a support order is “terminated,” all that means is that the accrual of the order stops.  The obligor will continue to be responsible for any arrearage after termination of the order, and the arrears will remain as a debt owed by the obligor until it is fully satisfied, even if that is long after the order is terminated.


  • Cases, Rules, and Statutes to consider:
    • 23 Pa.C.S.A. §3301(a)
    • 23 Pa.C.S.A. §3701;
    • 23 Pa.C.S.A. §3702;
    • 23 Pa.C.S.A. §4321;
    • 23 Pa.C.S.A. §4322;
    • 23 Pa.C.S.A. §4324;
    • 23 Pa.C.S.A. §4326;
    • 23 Pa.C.S.A. §7211;
    • R.C.P. 1910.16-1;
    • R.C.P. 1910.16-2;
    • R.C.P. 1920.31;
    • Smedley v. Lowman, 2 A.3d 1226 (Pa.Super.2010);
    • Grigoruk v. Grigoruk, 912 A.2d 311 (Pa.Super.2006);
    • Stamerro v. Stamerro, 889 A.2d 1251 (Pa.Super.2005);
    • Schenk v. Schenk, 880 A.2d 633 (Pa.Super.2005);
    • Woskob v. Woskob, 843 A.2d 1247 (Pa.Super.2004);
    • Baker v. Baker, 861 A.2d 298 (Pa.Super.2004);
    • Teodorski v. Teodorski, 857 A.2d 194 (Pa.Super.2004);
    • Prol v. Prol, 840 A.2d 333 (Pa.Super.2003);
    • Christianson v. Ely, 575 Pa. 647 (2003);
    • Isralsky v. Isralsky, 824 A.2d 1178 (Pa.Super.2003);
    • H. v. R.H., 900 A.2d 922 (Pa.Super.2006);
    • Diament v. Diament, 816 A.2d 256 (Pa.Super.2003);
    • Humphreys v. DeRoss, 737 A.2d 775 (Pa.Super.1999);
    • Landis v. Landis, 456 Pa.Super. 727 (1997);
    • Litmans v. Litmans, 449 Pa.Super. 209 (Pa.Super.1996);
    • Calabrese v. Calabrese, 452, Pa.Super. 497 (1996);
    • Strawn v. Strawn, 444 Pa.Super. 390 (1995);
    • Crawford v. Crawford, 429 Pa.Super. 540 (1993);
    • Keller v. Keller, 275 Pa.Super. 573 (1980).



On 8/24/16 I Spoke at a Continuing Legal Education Seminar Hosted by the National Business Institute

I am excited to announce that I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (see here).  The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Concept Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

I have to admit that it was a nerve-wracking experience that took hours of work, especially knowing other lawyers were listening to me and relying on me for information to assist in their practices.  Now that it is over, I can look back and appreciate it and, I think, this experience has showed me what I did well and, more importantly, where I could improve if I am ever asked to do this again.  Despite the work and the nerves, I do hope I am asked again to lead a seminar, and I look forward to doing so.

In the meantime, although NBI put the materials I wrote into its official seminar book, all of the writing I did for this seminar ultimately belongs to me and I can reproduce it.  Over the the next few weeks I will be posting the materials I wrote for the seminar and I hope people can be edified by it!


Very recently I was at my sister’s house to celebrate my niece’s birthday.  Family and friends were gathered on the front lawn at picnic tables enjoying the company, food, drinks, and my niece’s special day.  Although we were there for my niece, for about an hour or so the attention of many of those in attendance – me included – were distracted by the goings on at a house a couple of doors down which, I think, are worth sharing about here in this blog.

At first the distraction was due to the mystery of it all and trying to figure out what they were doing.  A couple of ladies were out on the front lawn and driveway setting up various decorative items.  When I rolled in they were stretching sheer white fabric from the front window down to the lawn, and created a large structure out of balloons.  Not long after, a large double seated chair – a throne effectively – was brought out to the lawn and connected to the end of the stretched fabric and the balloon structure was placed behind it as a background.  This was followed by a large sign with a picture of the girl who lives in the house which said something like (I forget exactly) “Senior Prom: this is your Cinderella night!”  At this point, the mystery was solved and they were clearly setting up for a prom.

Although I thought the above was a little over-the-top, it seemed it was only the beginning.  The ladies then went ahead and constructed a carousel near the front door about six feet high with a hobby horse and more sheer white fabric stretched tastefully on it.  Out of that same front door came a white carpet which stretched to the street.  While at the street, about four poles were set out, each about four feet high, with a rope connecting them, to create what appeared to be a queue line rope as one would see at a red-carpet-event behind which the paparazzi and other spectators would stand.

Apparently the paparazzi rope was necessary as about thirty friends and family and other spectators arrived and congregated behind the rope all wielding cameras, cellphones, and tablets in order to capture the event.

At this point I was really curious just how far all this hoopla would go and I, and some others, had shifted our chairs on my sister’s lawn to face her neighbor’s house and became an audience for the building spectacle.

Now that all the props had been set in place, the next phase was the arrival of the date.  Just so you can have a visual: my sister’s street is a one-way city street with cars parked on both sides.  Suffice it to say it’s pretty narrow.  Eventually, down this narrow street, came a stretched Porsche limousine with gull wing doors that parked in front of the girl’s house and remained there for nearly an hour.  Needless to say, no one was getting down my sister’s street while it was there, and I am pretty certain no permit was secured for this event.  The gull-wings on the car raised and the girl’s date emerged to music playing from a stereo which had been set up on the front lawn.  At this time, I want to point out that, despite all the over-the-topness of it all, two things surprised me.  First, the boy’s tuxedo was black tie with a black coat and white pants and white shirt.  His abominable ignorance of standard tuxedo formal dress codes aside, I was expecting him to be wearing something completely ridiculous.  So, his fairly conservative choice was not at all expected.  Second, curiosity got the best of me and I poked my head into the limousine.  I was expecting it to look like some gaudy version of the bridge to the Starship Enterprise inside.  Much to my disappointment, it just looked like a standard party limousine inside.

Moving on: the date moved beyond the paparazzi rope at which time the music swelled and a little girl in a gown emerged from the house on the white carpet spreading flower pedals on the ground below her.  In other words: a flower girl.  Yes, a flower girl, as in someone who participates in a wedding.  Behind her, the girl-of-the-hour appeared wearing a white(ish) dress with a train and veil (not over her face thank God) being held by her mother who was immediately behind her wearing an off-white dress which appeared to be a mother-of-the-bride dress.  It was all rather uncomfortably (for me) wedding-like.

Of course, the paparazzi snapped countless pictures and took video footage of it all.  The girl made her way to the throne on the lawn, to be joined by her date for a photo-op.

And then, in an hour’s worth of over-the-top, something completely absurd (to me) occurred:  some guys went into the house and carried out an area rug (presumably from their living room) and laid it out in front of the couple, and on that rug a little girl (the sister of the girl in the prom maybe?) performed a dance for the happy couple to music played on the stereo.

After all the festivities, the couple entered the limousine and were transported to an evening of bliss at their Senior Prom.

Now, I admit I did not go to my prom, so some of this seems silly to me all the way around, but I get that people go to prom and enjoy it.  My sister went to her prom.  She and her friends got their hair and makeup all done up and wore fancy dresses, and their dates came over and took pictures in my back yard in their outfits, and then went in their cars to the prom.  That was it.  My sister had no paparazzi.  No interpretive dance.  No carousel.  Most disappointing of all?  No car with gull-wings. This seemed normal to me.  I think it is normal for most people in my age group.

How and when did promos change?  I am sure the kids I watched at my sister’s house also had an elaborate “promposal,” which is this new thing where asking to go to the prom is, itself, an event.  I told my sister that my niece – who we were all there to see after all – was likely taking mental notes about her own prom in about ten years, and my sister needs to brace herself!

Although the story I related above is fun and possibly interesting, I think things like this are becoming more and more typical.  I wonder what it says about our society and our culture?

The first thing that it says to me is that it reflects our culture’s weird obsession (worship?) with celebrities, reality television, and the idea of “being famous.”  I have seen many polls which suggest that kids today would much rather “be famous” when they become an adult than take on an occupation or accomplish something.  Apparently, reality television – and the constant barrage of tabloid media that people (especially kids) now consume – seems to have shaped actual reality in some way to make things like the above expected or perhaps “normal” now.

I think it also points to our culture’s superficiality.  These are just two high school kids.  This is not a wedding where life-long troth is pledged.  Yet, from the hoopla, it would seem the same significance is applied to both.  We seem to ignore the deeper and more significant aspects of relationship (e.g.: commitment, self-sacrifice, etc) and, instead, focus on the superficial feelings of the moment (e.g.: romance, desire, and impressing others).  Many jokes were made about what this couple will do after the prom is over, all suggesting some sort of sexual encounter.  I hope these jokes do not reflect this couple’s reality, however when we celebrate a prom in a similar way as we celebrate a wedding – down to using similar imagery (e.g.: flower girls, white dresses, etc), what message are we (as adults) sending to these kids, and what else should we expect them to do or think?  Why wouldn’t their evening head toward a sexual encounter?  After all, it’s presented to them with the trappings of marriage.  Teenagers have enough internal motivation for this sort of thing, they do not need the adults in their life giving them the illusion that prom is a mini-wedding, and all the things that go along with that.

Another, and perhaps more depressing, aspect of all this is what it says about marriage.  Despite all the attention “gay marriage” has received, the fact is that marriage rates are on a steep decline, and have been so for some time now.  As a family lawyer, my thoughts went to marriage and children while I watched all of this, and I could not help but think that all of this spectacle poured into something as minor as a Senior Prom is due to the fact that there is no expectation to marry any more.  This was the girl’s opportunity to have a big romantic evening with her boyfriend, not her wedding.  Who has weddings anymore?  That is so last century.

Finally, there seems to be a consensus in America that our economy is, at best, under performing, and people do not have the income and money they used to have during better days.  In spite of that, this family spent lavishly for one ephemeral evening for a high school event.  This took place in a typical middle-class area.  These people were not rich.  It seems that, with all the complaining about the economy, people still insist on spending absurd amounts of money on frivolous things.  Perhaps our view of the condition of our economy is as much due to our own feelings of what we are entitled to have and spend our money on as it is to reality.  This is a much bigger discussion, so I will not get into it here, but suffice it to say here, the entire event just seemed like a huge waste of valuable money (I admit that I do not like spending money – some may call me “cheap” – so that may color my view here).

My wife, who tends to be more optimistic than me, told me that I should perhaps take note of, and focus upon, the fact that this couple had family and friends who loved them so much as to spend money on, plan, set up, attend, and hold this event for them.  That seems true too and I guess that is a positive to take away from it all.

I love my sons, and I hope they enjoy their proms if they decide to go, but if they expect me to shell out the money for an event remotely like this one, I think they’ll be disappointed.  I guess, as history unfolds, we will see how these developments in the prom tradition fit into the development in our culture.  I just hope it is for the good.

More on this sort of stuff here and here and here and here.









Against Heterosexuality

Every now and again I come across a fantastic article the warrants posting here; I just came across one in First Things, which is a journal (print and online) published by the Institute on Religion and Public Life.  It is a scholarly and rather academic publication which has many well respected contributors.  I have been a commentator on the changes of sexual culture in the West and its abandonment of traditional sexual ethics and mores (see here for an example).  It should not be a shock to anyone who knows me or reads my material that I think these changes are and/or will be a disaster to our culture, children, families, and marriages.  This article challenges the post-modern dogma that the various strains of “sexual orientation” are actual categories of people as opposed to merely cultural labels on chosen behavior with a very short history.  Be edified.


Alasdair MacIntyre once quipped that “facts, like telescopes and wigs for gentlemen, were a seventeenth-century invention.” Something similar can be said about sexual orientation: Heterosexuals, like typewriters and urinals (also, obviously, for gentlemen), were an invention of the 1860s. Contrary to our cultural preconceptions and the lies of what has come to be called “orientation essentialism,” “straight” and “gay” are not ageless absolutes. Sexual orientation is a conceptual scheme with a history, and a dark one at that. It is a history that began far more recently than most people know, and it is one that will likely end much sooner than most people think.

Over the course of several centuries, the West had progressively abandoned Christianity’s marital architecture for human sexuality. Then, about one hundred and fifty years ago, it began to replace that longstanding teleological tradition with a brand new creation: the absolutist but absurd taxonomy of sexual orientations. Heterosexuality was made to serve as this fanciful framework’s regulating ideal, preserving the social prohibitions against sodomy and other sexual debaucheries without requiring recourse to the procreative nature of human sexuality.

On this novel account, same-sex sex acts were wrong not because they spurn the rational-animal purpose of sex—namely the family—but rather because the desire for these actions allegedly arises from a distasteful psychological disorder. As queer theorist Hanne Blank recounts, “This new concept [of heterosexuality], gussied up in a mangled mix of impressive-sounding dead languages, gave old orthodoxies a new and vibrant lease on life by suggesting, in authoritative tones, that science had effectively pronounced them natural, inevitable, and innate.”

Sexual orientation has not provided the dependable underpinning for virtue that its inventors hoped it would, especially lately. Nevertheless, many conservative-minded Christians today feel that we should continue to enshrine the gay–straight divide and the heterosexual ideal in our popular catechesis, since that still seems to them the best way to make our moral maxims appear reasonable and attractive.

These Christian compatriots of mine are wrong to cling so tightly to sexual orientation, confusing our unprecedented and unsuccessful apologia for chastity with its eternal foundation. We do not need “heteronormativity” to defend against debauchery. On the contrary, it is just getting in our way.

Michel Foucault, an unexpected ally, details the pedigree of sexual orientation in his History of Sexuality. Whereas “sodomy” had long identified a class of actions, suddenly for the first time, in the second half of the nineteenth century, the term “homosexual” appeared alongside it. This European neologism was used in a way that would have struck previous generations as a plain category mistake, designating not actions, but people—and so also with its counterpart and foil “heterosexual.”

Psychiatrists and legislators of the mid- to late-1800s, Foucault recounts, rejected the classical convention in which the “perpetrator” of sodomitical acts was “nothing more than the juridical subject of them.” With secular society rendering classical religious beliefs publicly illegitimate, pseudoscience stepped in and replaced religion as the moral foundation for venereal norms. To achieve secular sexual social stability, the medical experts crafted what Foucault describes as “a natural order of disorder.”

“The nineteenth-century homosexual became a personage,” “a type of life,” “a morphology,” Foucault writes. This perverted psychiatric identity, elevated to the status of a mutant “life form” in order to safeguard polite society against its disgusting depravities, swallowed up the entire character of the afflicted: “Nothing that went into [the homosexual’s] total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle.”

The imprudent aristocrats encouraging these medical innovations changed the measure of public morality, substituting religiously colored human nature with the secularly safer option of individual passion. In doing so, they were forced also to trade the robust natural law tradition for the recently constructed standard of “psychiatric normality,” with “heterosexuality” serving as the new normal for human sexuality. Such a vague standard of normality, unsurprisingly, offered far flimsier support for sexual ethics than did the classical natural law tradition.

But emphasizing this new standard did succeed in cementing these categories of hetero- and homosexuality in the popular imagination. “Homosexuality appeared as one of the forms of sexuality,” Foucault writes, “when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.” Sexual orientation, then, is nothing more than a fragile social construct, and one constructed terribly recently.

While our popular culture has not caught up— yet—the queer theorists increasingly calling the shots at the elite level already agree with Foucault on this point. Such thinkers echo Gore Vidal’s LGBT-heretical line: “Actually, there is no such thing as a homosexual person, any more than there is such a thing as a heterosexual person.” True, the firm natural division between the two identities has proven useful to the “gay rights” activists on the ground, and not least of all for the civil-rights-era ethos such power dynamics conjure up. But most queer theorists—and, for that matter, most academics throughout the humanities and the social/behavioral disciplines today—will readily concede that such distinctions are fledgling constructs and not much more. Many in this camp aim to expose the counterfeit credentials of sexual orientation and, taking a page from Nietzsche, to genealogically explain it away once and for all.

Jonathan Ned Katz, a historian of sexuality on the radical left who has previously taught at both Yale and New York University, nicely captures the contemporary queer-theory consensus in The Invention of Heterosexuality , where he explains, “I speak of heterosexuality’s historical invention to contest head-on our usual assumption of an eternal heterosexuality, to suggest the unstable, relative, and historical status of an idea and a sexuality we usually assume were carved long ago in stone.” As he goes on to argue, “Contrary to today’s bio-belief, the heterosexual/homosexual binary is not in nature, but is socially constructed, therefore deconstructable.”

My own prediction is that we will see this binary thoroughly deconstructed within our lifetimes. But in my view, we proponents of Christian chastity should see the impending doom of the gay–straight divide not as a tragedy, but as an opportunity. More than that, I want to suggest that we should do our best to encourage the dissolution of orientation within our own subcultural spheres wherever possible.

Of course, given our immersion in a culture for which these categories seem as connatural as the English language, uprooting them from our vocabulary and worldview will not be anything like a simple task. So why bother? As long as we do not succumb to sinful acts, why does it matter if people—even we Christians—continue to identify as homosexuals or heterosexuals?

First of all, within orientation essentialism, the distinction between heterosexuality and homosexuality is a construct that is dishonest about its identity as a construct. These classifications masquerade as natural categories, applicable to all people in all times and places according to the typical objects of their sexual desires (albeit with perhaps a few more options on offer for the more politically correct categorizers). Claiming to be not simply an accidental nineteenth-century invention but a timeless truth about human sexual nature, this framework puts on airs, deceiving those who adopt its labels into believing that such distinctions are worth far more than they really are.

A second reason to doubt whether this schema is one that we Christians should readily use is that its introduction into our sexual discourse has not noticeably increased the virtues—intellectual or moral—of those who employ its concepts. On the contrary, it has bred both intellectual obscurity and moral disarray.

As to the former, orientation essentialism has made ethical philosophy in this realm all but impossible: It has displaced the old marital-procreative principles of chastity without offering any alternative that is not entirely arbitrary. The older teleological view measured morality against man’s rational-animal nature; in the sexual realm, this meant evaluating sex acts by reference to the common good of marriage, which integrated spousal union and the bearing and rearing of children. The newer heteronormative system, on the other hand, cannot account for the wickedness of same-sex sodomy by reference to anything but a conditioned and unprincipled gag reflex, and one which, left unjustified, has weakened considerably over time.

As to the latter result, moral disarray, the orientation takeover has counterproductively shifted our everyday attention from objective purposes to subjective passions. Young people, for instance, now regularly find themselves agonizing over their sexual identity, navel-gazing in an attempt to discern their place in this allegedly natural Venn diagram of orientations. Such obsessions generate far more heat than light, and focus already sexually excited adolescents on discerning extraneous dimensions of their own sexual makeup. This self-searching becomes even more needlessly distressing for those who discern in themselves a “homosexual orientation,” as they adopt an identity distinguished essentially by a set of sexual desires that cannot morally be fulfilled.

There is a third reason this categorization should be disposed of, this one theological: It is at odds with the freedom for which Christ set us free. My future prior in religious life, Fr. Hugh Barbour of the Norbertine Fathers, has expanded on this idea in an essay in Chronicles Magazine , entitled “Do Homosexuals Exist? Or, Where Do We Go from Here?” As Fr. Prior argues, “Traditional moral theology evaluated acts, and did not generalize so unsatisfyingly about the tendencies that lead to these acts. That was left to the casuistry of occasions of sin, and to spiritual direction. If the sin is theft, then is the standard of evaluation kleptomania? If drunkenness, alcoholism? If sloth, clinical depression?” Even orthodox Christians, he writes,

have given in to the custom of treating sexual inclinations as identities. Pastorally, we are meant to preach the freedom whereby Christ has made us free. In treating the sin of sodomy as a prima facie proof of an identity, are we not, in the guise of compassion and sensitivity, helping bind the sinner to his sinful inclination, and so laying on him a burden that is too great to bear without perhaps moving a finger to lift it?

Self-describing as a “homosexual” tends to multiply occasions of sin for those who adopt the label—provoking, in Prior’s words, an unnecessary “dramatization of the temptation.” Whereas the infusion of the theological virtues sets the Christian free, identifying as homosexual only further enslaves the sinner. It intensifies lust, a sad distortion of love, by amplifying the apparent significance of concupiscent desires. It fosters a despairing self-pity, harming hope, which is meant to motivate moral virtues. And it encourages a strong sense of entitlement, which often undermines the obedience of faith by demanding the overthrow of doctrines that seem to repress “who I really am.”

There are a handful of laudable counterexamples to this discouraging pattern, self-identified “gay Christians” who are both virtuous and faithful to the teachings of the Church. But given the inherent tension between the classical Christian narrative and the modern sexual-orientation account, it should come as no surprise that the praiseworthy outliers who try to combine these two inconsonant traditions are the exception rather than the rule.

Baptizing the homosexual identity is fraught with preventable perils. And yet, when it comes to the gravest evil effected by the sexual-orientation binary, homosexuality is not the culprit. Heterosexuality is—not, of course, as though we can have one without the other. The most pernicious aspect of the orientation-identity system is that it tends to exempt heterosexuals from moral evaluation. If homosexuality binds us to sin, heterosexuality blinds us to sin.

There is no question that some morally self-aware “heterosexuals” exist. Nevertheless, as a general rule, identifying as a heterosexual person today amounts to declaring oneself a member of the “normal group,” against which all deviant sexual desires and attractions and temptations are to be measured. Such hetero-identification thus ushers in a pathetically uncritical and—hopefully it goes without saying—unmerited self-assurance, not to mention an inaccurate measure for evaluating temptation.

Of course, we do have a model norm for the evaluation of sexual deviancy. But that model is not heterosexuality. It is Christ Jesus himself, the God-man who both perfected human nature and perfectly exemplified its perfection, “one who in every respect has been tempted as we are, yet without sin.” For the self-declared heterosexual to displace our Lord in this position is the height of folly.

It is true that homosexuality may be distinguished by an inappropriate despair, accepting sinful inclinations as identity-constituting and thereby implicitly rejecting the freedom bought for us by the blood of Christ. But heterosexuality, in its pretensions to act as the norm for assessing our sexual customs, is marked by something even worse: pride, which St. Thomas Aquinas classifies as the queen of all vices.

There are practical reasons to be wary of heterosexuality as well. Because our post-Freudian world associates all physical attraction and interpersonal affection with genital erotic desire, intimate same-sex friendship and a chaste appreciation for the beauty of one’s own sex have become all but impossible to achieve. (Freud, by the way, was one of the most influential architects of the vicious orientation-essentialist myth.)

For “heterosexuals” in particular, getting close to a friend of the same sex ends up seeming perverse, and being moved by his or her beauty feels queer. To avoid being mistaken for gay, these days many self-proclaimed straight people—men especially—settle for superficial associations with their comrades and reserve the sort of costly intimacy that once characterized such chaste same-sex relationships for their romantic partners alone. Their ostensibly normal sexual orientation cheats them out of an essential aspect of human flourishing: deep friendship.

The earliest usages of the term “heterosexuality” give further reason to doubt whether we should celebrate the idea too enthusiastically. It is true that even in the late nineteenth century, sometimes the label was employed merely to denote “normal-sex.” This is, of course, how we still tend to use “heterosexual” today, which I am arguing is tragically confused.

But another prominent meaning of the term around the time of its invention, including its first recorded usage in English in 1892, continues to inform our warped conception of human sexuality, even though this secondary definition has since fallen out of fashion. In its alternative definition, the word designated not “normal-sex,” but rather a different brand of deviant sex, like its homosexual counterpart in its disregard for procreation but made distinct by the typical object of its lustful inclinations.

The unfortunate history of “heterosexual” we have chosen to forget is that this word came into the English language as a label for a perverted sexual disorder that delighted in sterile sex acts. Usually such desires were for those of the opposite sex, but even that line was blurry, because as it turned out, once the generative purpose of sex had been severed, it often mattered very little who the heterosexual’s mutual masturbatory partner was.

Our Christian forebears would be shocked at our complacency with sexual orientation. The only reason that this whole program fails to alarm us as it would them is that we have been systematically indoctrinated into it from childhood, especially the young adults among us. But to take an analogue that we do not have such familiarity with, let’s consider how we would react if a different sort of category worked its way into our cultural vocabulary.

Slate recently ran an article entitled “Is Polyamory a Choice?” which argued that, in addition to inclinations toward men or women, there may also be innate and immutable fidelity- and infidelity-constituted sexual orientations. Dan Savage must be so proud.

Imagine if those people who anticipated being most romantically satisfied by committed sexual exclusivity began identifying as “faithfuls,” while those who were usually most excited by the prospect of unbounded sexual promiscuity started identifying as “unfaithfuls.” Would we not find that troubling, especially when Christian men and women began adopting the latter label for themselves, and even offering the fact that they are “unfaithfuls” as a reason not to marry, since they would not be sufficiently fulfilled by the sexual life to which they would be committing themselves via the marital vows?

“Unfaithfulness” is obviously playing the role of homosexuality in this analogy. But whether we are considering the number of one’s sexual partners or their gender, how can it not shock us when our Christian brethren adopt an identity for themselves that is essentially distinguished from its foil by nothing but a particular brand of temptation to sin? That is the opposite of Christian freedom. Of course, all of us are fallen and tempted and in need of divine assistance. But while we continue to struggle against these sinful temptations, what has been given to us in Christ Jesus is liberation from the shackles of sin that claims us as its own.

We do not belong to our transgressions any longer. So why create identities for ourselves using sin as the standard? I do not care how attractive promiscuity happens to be to you. You are emphatically not “an unfaithful.” Sure, we could socially construct categories that would make speaking that way appear obvious and connatural. But for the Christian to do so, or for him to participate willingly in such a framework once it has been constructed around him, would be severely mistaken.

I am not my sin. I am not my temptation to sin. By the blood of Jesus Christ, I have been liberated from this bondage. I will have all sorts of identities, to be sure, especially in our crazily over-psychoanalytic age. But at the very least, none of these identities should be essentially defined by my attraction to that which separates me from God.

The other side of this Slate-inspired hypothetical brings to light the characteristic evils of heterosexuality. Our justified disapproval of Christians despairingly identifying as “unfaithfuls” notwithstanding, would there not be something even more absurd and vicious in their vaingloriously self-identifying as “faithfuls”? Put it this way: Does the fact that my erotic desires tend to take a single person for their object rather than a vast collective necessarily signify some inherent moral quality on my part? For that matter, does it even signal that my desires are virtuous, or—I think more probably—does it simply indicate that I happen not to be strongly tempted to one of many potential lustful abuses? Like so-called “faithful” folks, “heterosexual” individuals are not paragons of chastity just because they avoid the unchaste pitfall du jour.

However, despite the illogic of it all, “straight people” still tend to receive more societal advantages from their appellation, and thus the dismantling of the orientation schema threatens them far more than it does their “gay” and “lesbian” counterparts. As Jenell Williams Paris of Messiah College writes in her book The End of Sexual Identity, “Grounding sexual ethics in our humanity more than in contemporary sexual identity categories . . . comes at a cost to heterosexuals,” because “it puts them in the game as players instead of umpires.” For that very reason, though, it is self-proclaimed heterosexuals who may prove most effective in leading our chaste charge against sexual orientation, sacrificing their unchristian security blanket of “straightness” for the sake of caritas in veritate.

Yet whether we Christians choose to join the campaign or not, over time, sexual orientation will inevitably fall out of fashion—our choice is simply whether we want to fall out with it. One obvious reason for its unavoidable demise is that feeling is considerably more fickle than those early psychosexual movers and shakers believed. The empirical evidence shows their hard-and-fast categories turn out to be radically insufficient.

A second factor in the inevitable downfall of sexual orientation is that these hetero/homo categories cannot logically ground the sexual norms they were made to support anyway. The original orientation essentialists could not even offer a principled reason to prefer heterosexuality over homosexuality, the linchpin of their position. Left with nothing but inherited sensibilities and arbitrary fiat, their heteronormative measure failed where its procreative predecessor had succeeded for centuries, in offering sound reasons for rules.

Philosophical failure has damned the orientation enterprise throughout its existence. Because the inadequate heteronormative standard left opposite-sex instances of lust entirely untouched, sins previously considered mortal—such as masturbation, pornography, fornication, contraception, and male-female sodomy—were progressively tolerated. Yet with all those injunctions lifted, understandably, it began seeming inconsistent and thus prejudiced to keep insisting on same-sex sodomitical proscriptions. The orientation-essentialist structure, which was meant to be a surefire defense against homosexual debauchery, thereby became the strongest weapon in its arsenal.

Which brings us to the final, perhaps most surprising, reason that sexual orientation will fall: It has nearly exhausted its political utility, which always had an expiration date. The nineteenth-century moral conservatives’ plan for orientation backfired, of course, when what were supposed to be normatively unequal psychiatric conditions evolved into morally indistinguishable psychological identities.

Yet neither does liberalism have much left to glean from it, since, between Romer and Lawrence and Windsor and ENDA, very few “gay rights” issues remain to be settled. Orientation might have a few years’ worth of political capital still, but many progressives already boast that they could discard the absurd natural-categories myth and be just fine, having now initiated an irresistible liberalizing trend that will continue apace with or without it. Sooner or later, the queer theorists’ ivory-tower pronouncements will become cultural orthodoxy as well.

Although I expect many conservative Christian thinkers will find Foucault a strange bedfellow, I want to suggest that our endorsement of the radical left on this subject should be an enthusiastic one, although it must also be carefully circumscribed. In essence, we should happily join our voices to those of the poststructuralist queer theorists in their vigorous critiques of the naive orientation essentialists, who mistakenly think “straight” and “gay” are natural, neutral, and timeless classifications.

Their disillusioned historicism makes these sexual genealogists uniquely positioned to see through the deceptions of sexual orientation, and while we Christians do not need them in some essential sense, nevertheless, in an accidental way, they may prove a great asset to us at present. Ironically, these radical leftists may be the only ones who can heal the blindness we have foolishly inflicted upon ourselves of late by uncritically adopting the language of hetero- and homosexuality.

However, while we can and should recommend the queer theorists’ diagnosis of the absurdity plaguing our popular sexual categories today, nevertheless we cannot sign on to their plan of treatment. Jonathan Ned Katz, Hanne Blank, and contemporary queer theorists generally, aim to genealogically explain away the rigid orientation schema precisely because they believe this will give them the freedom and the power to make, unmake, and remake their sexuality as they see fit.

They want to tear down these failed social constructs not so that something better can be constructed in their place—or, perhaps, rediscovered amid the rubble—but because they hope to achieve an even greater degree of sexual libertinism than we have today, even if it comes at the cost of endorsing a wretched sort of sexual nihilism. To riff on Dostoevsky, these radicals would like to believe that if orientation does not exist, then all things are permissible.

The Christian cannot follow them down this miserific road, of course. But neither, I believe, can the Christian remain content in today’s deceptive, doomed orientation taxonomy. Mark my words: The queer theorists will have their way in dismantling the thing before long. Even our popular culture is beginning to show signs of stress here. The ever-increasing laundry list of orientations demonstrates the insufficiency of those neat and discrete categories. And the now familiar concept of the “hasbian” suggests that these identities are far less static than we were initially led to believe. (Think, for example, of our new ex-homosexual first lady of New York City.)

The question is, once this sexual-orientation structure collapses, what will come to replace it: the queer theorists’ nihilistic anything-goes ethic, or the classical Christian view from which all of this is a departure, the view that takes the marital-procreative as its end and organizing principle, evaluating passions against nature rather than vice versa?

The role of the champion of Christian chastity today, I argue, is to dissociate the Church from the false absolutism of identity based upon erotic tendency, and to rediscover our own anthropological foundation for traditional moral maxims. If we do not wish to be swept away with modernity’s orientation essentialists, then we need to remind the world that our sexual ethics was never really at home in the modern framework anyway, and thus that our forsaking the framework need not lead to postmodern nihilistic libertinism. There is firmer ground to stand on in the classical Christian tradition. Indeed, it seems to me the only place left to stand.

The Bible never called homosexuality an abomination. Nor could it have, for as we have seen, Leviticus predates any conception of sexual orientation by a couple of millennia at least. What the Scriptures condemn is sodomy, regardless of who commits it or why. And yet, as I have argued throughout, in our own day homosexuality deserves the abominable label, and heterosexuality does too.

As regards sexual morality, we have reached a point at which it is no longer sufficient for us to criticize modernity’s poor answers. Like our Lord in the gospel narratives, we must also correct its terribly impoverished questions. Rather than struggling to articulate how to live as a “homosexual Christian”—or, for that matter, the even more problematic question of how to live as a “heterosexual Christian”—we should be teaching our Christian brethren, especially those in their most formative adolescent years, that these categories are not worth employing.

They are recent inventions that are utterly foreign to our faith, inadequate for justifying sexual norms, and antithetical to true philosophical anthropology. The time has come for us to eradicate sexual orientation from our worldview as systemically as we can manage—with all due prudence as to complicated particular cases, of course.

If Pope Francis is right that contextualizing our moral discourse is a necessary prerequisite to being found convincing—or even intelligible—by our interlocutors, then abandoning heteronormativity and resurrecting our own tradition of familial-teleological chastity is the only way to adequately explain Christian sexual ethics.

By: Michael W. Hannon (who is preparing to enter religious life with the Norbertines of St. Michael’s Abbey in Orange County, California); originally published in March 2014 in First Things and can be found here.

Modern Weddings Have Lost Interest in the Marriage Bed

Every now and again I come across a fantastic article the warrants posting here; I just came across one in First Things, which is a journal (print and online) published by the Institute on Religion and Public Life.  It is a scholarly and rather academic publication which has many well respected contributors.  I have been a commentator on the changes of sexual culture in the West and its abandonment of traditional sexual ethics and mores (see here for an example).  It should not be a shock to anyone who knows me or reads my material that I think these changes are and/or will be a disaster to our culture, children, families, and marriages.  The article I am sharing here reflects yet another one of those changes.  Due to the diminution and redefinition of marriage, the once holy, sacred, and, indeed, exciting marriage bed – which is to be first experienced on one’s wedding night – no longer has much meaning, and this lack of meaning is reflected in how weddings are planned and scheduled.  I will leave it at that and let the article do the rest of the talking.  Be edified.


I became engaged at Easter, and, as I’ve started planning our wedding with my fiancé, I’ve noticed a suspicious lacuna in the wedding how-to’s I’ve picked up. I would have thought, after one magazine’s handbook covered strategies for getting your pet turtle to join your wedding procession (they won’t walk down the aisle quickly enough, so you must tow its tank in a tulle-swathed wagon), that there was nothing the wedding-industrial complex was going to leave undiscussed.

Except the wedding night.

It’s not that the books and magazines and websites draw a modest veil over the occasion or that their remit stops when the ceremony ends (there are plenty of discussions of honeymoon planning). As I read through The Knot Book of Wedding Lists, it was clear that the wedding night wasn’t simply being ignored but actively treated as an afterthought.

The book encouraged readers to remember that the festival spirit of a wedding wasn’t limited to the ceremony and reception.

There’s not just the one (huge) celebration to think about—kick off your engagement with a cocktail party; throw a rehearsal dinner to remember; extend the wedding-night celebrations with an after-party; and send your guests off with a post-wedding brunch.

It’s those last two that cause the problem. The book recommends planning (and planning to attend) a second party after the reception winds down, telling spouses-to-be: “An after-party is more than just an extension of your wedding day—it’s a great way to show off more of your wedding style with surprising details and personal touches.”

How late will that party go? Well, the planning guide notes that it’s up to you, but that most venues will close by two or three in the morning. “A good rule of thumb is two to four hours, depending on the time your reception ends.”

After that, the newlyweds go home, get into bed, and, just before they pass out from exhaustion, they set the alarm for the recommended farewell brunch, now just a couple hours away.

It can’t be that the book’s authors didn’t notice that they’d squeezed the wedding night down to nothing (this is a book that reminds you that if you’re only booking one hairstylist for you and your bridesmaids, someone will need to volunteer for the early morning slot).

It’s simply that this is a plan that assumes there will be nothing particularly special about the first night that a couple spends together. It’s a to-do list for engaged couples who have already been sexually intimate before marriage and don’t need to reserve any time or energy for consummation. In all the hustle and bustle of a wedding weekend, there’s no time for non-essentials, and one more night together doesn’t manage make the schedule.

But the editors of The Knot and the brides and grooms that listen to them aren’t simply not choosing the wedding night, they’re neglecting it in favor of something that does deserve a little more respect than processional turtles. The reason they recommend a wedding brunch (when many run-ragged spouses might prefer to sleep in) is that it’s a “chance to thank your guests and spend a bit more time with loved ones who’ve travelled far to partake in the celebration.”

If the bride and groom have already lived as man and wife, then it may be their friends that seem to offer the rarest, most urgent opportunity to give and receive love. It might be the one time this year you see the friend who moved out to California, or the very busy former roommate whose job keeps her traveling, or the cousin with a lot of small children who isn’t making a lot of trips until the youngest can fly. So why not pack in all the time with your guests that you can, since the bridegroom you will always have with you, but everyone else will be gone by Monday.

This is a kinder sort of error than the conventional forms of wedding excess. It is rooted in a love for others and a desire to make as great a self-gift as is possible. But it’s still a form of profligacy. Party after party robs the newlyweds of the chance to give themselves to each other.

Far better, even for a couple who has been sexually active before marriage, to set aside their night as their own, and to recognize that, as much as they love their friends, that they are no longer only their own, their time not only their own to spend.

Instead of recommending wedding schedules that erase the bride and groom’s obligation to (and delight in) each other, the Knot and other wedding guides might do well to carve more time out of the reception for the couple to spend together. They could borrow the tradition of the Yichud Room from Jewish weddings. After they are wed, a Jewish bride and groom head into a separate, locked room for a private interlude. It may be brief (eight minutes is the minimum required) but it allows them to not be hosts, but simply to be two people, a little awed by what they’ve offered to each other.

By: Leah Libresco who is a blogger for Patheos and works as a statistician in Washington, DC. Her first, recently published book is called Arriving at Amen: Seven Catholic Prayers That Even I Can Offer.

This article can be found on the First Things website here and was published on April 19, 2016.


Poly-parenting: on the Horizon

In June 2015, in the matter of Obergefell v. Hodges, the United States Supreme Court has officially redefined marriage for every state in the United States to include not just traditional man/woman relationships, but also same-sex relationships (I have shared some thoughts on the future of marriage here).  There is a lot which could be said about the Court’s decision both in terms of the quality of the legal analysis in the decision itself as well as the fundamental issues regarding marriage it implicates.  In this post, I would like to focus on the implications this decision has on parenting.  There are other implications from the Court’s decision and you can read more about the philosophical problems with redefining marriage as the Court has done described above here.

What is marriage?  A good working definition of marriage can be found here.  To put it simply, marriage is a place where two people can have complete conjugal union in every respect, including spiritually, mentally, emotionally, and physically.  Not to get too graphic here, but suffice it to say here that only a man and a woman (and not a man/man or woman/woman) are physically complementary to allow for physical union (I do not think I need to get into details here, I am sure my point is clear).  Teleologically speaking, one of the primary purposes of the full and complimentary union of man and woman is to provide a place and context where sexual relations can occur and, again teleogically speaking, one of the primary purposes of sex is to conceive children.  Therefore, a marriage forms the structure in which a family – which is to say parents (a mother and father) and their children (i.e.: children related to both the father and the mother) – can form and develop.  As homosexuals have no way to reproduce with one another, it is impossible for them to create a family structure in which children can be conceived and, therefore, their relationships are something other than marriage.

Despite the above, and the essentially universal nature of both man/woman marriage (and the rejection of homosexual “marriage”) the world over for all of human history, the United States Supreme Court redefined marriage as including man/man and woman/woman relationships along side that of man/woman relationships (though I see no logical reason why the Court’s decision, by its language, ought not also include polygamy, but that is a topic for another post).  By so doing, the Court has formally (which is to say legally) separated the act of sex from marriage and, therefore, the conception of children from both: unlike a marriage, a homosexual relationship cannot engage in full physical conjugal union and, therefore, cannot conceive children and form a family, and, consequently, cannot form a marriage.

Traditionally, a parent of a child is the father or mother who conceived the child and those parents formed the marital family in which the child would be raised.  By contrast, a child within the “marital family” formed by a homosexual couple cannot be the child of both parents, therefore a homosexual “marriage” does not just redefine what a marriage is, but it also redefines what a parent is.  Now, a parent is not someone who is involved at all with a child’s conception; more than that, a parent is now not even someone who could have been involved in a child’s conception.  Instead of a father and mother – as both biology and human culture the world over for time immemorial have dictated – a child can now have a mother and a mother or a father and father.

Based on the above, I think the dawn of legally recognized same-sex “marriage” – and the advent of married fathers (without a mother) or married mothers (without a father) – blows open the doors as to precisely just what a parent is or is not and how many a child can have.  Of course, same-sex “marriage” advocates will bloviate about how my concerns are silly, unfounded, or possibly unrealistic, but, in so doing, those same people ignore the obvious philosophical (and I predict actual) implications of redefining marriage in the way they have succeeded in doing.

Firstly, it should be noted that the typical law across the United States is that a child born to a woman in a marriage is presumed to be the child of that woman’s husband in the marriage.  This presumption exists because the husband is biologically capable of conceiving a child with his wife.  In a same-sex “marriage” such a presumption simply cannot apply as the “husband” to another man cannot conceive a child with that other man and, similarly, a “wife” to another woman cannot conceive a child with that other woman.  As a result, there is no logical, let alone biological, reason to presume any child born to a woman in a same-sex “marriage” is the child of the other woman and certainly no child born to a “marriage” of two men can, in any rational way, be presumed to be the child of either man in the “marriage.”  Therefore, from the start, the connective tissue that is formed between a child and his parents is immediately corroded by same-sex “marriage” as the traditional presumptions of parenthood simply do not apply and are out-of-place to a “marriage” relationship which separates sex and children from marriage.

Since sex, children, and marriage are now separated – and the fundamental roles (or, indeed, need) of a “mother” and “father” undermined (since a child can now have two mothers and no father or two fathers and no mother) – it raises the question as to why we are locked into a two parent paradigm at all.  As indicated above, traditionally (and biologically) a woman and a man come together (physically but also in other ways) to conceive a child and that marital unit of mother and father, and the child they conceive, form the basis of the family.  This traditional view of the family reflects the obvious reality of biology that every child has two parents: the woman and the man involved in his conception.  The new paradigm of “marriage” involving two women or two men introduces the idea that a child’s parents can be two “mothers” (and no father) or two “fathers” (and no mother) with at best only one of the two being involved in his conception.  As a result, I see no compelling reason – and certainly no biological reason – why the number of a child’s parents should now be limited to two.  It makes sense to limit a child’s parents to two when a child’s parents are the two involved in conceiving him, but when marriage and parenthood are divorced (pun intended) from who conceives a child, what logic is there to stop at just two parents?  Why should a child be limited to just two parents?  Why not a third? or fourth? or as many as are willing?  Those other people are just as “related” to the child as his second “mother” or second “father” (or, indeed, either father).  We all know that people do not have to be married to have children, so the marital status of those other people is irrelevant.  So, since actual relationship to the child is now irrelevant I see no logical reason to limit a child’s parents to only two if the opportunity for more presents itself.

This leads to my next point: divorce and/or adoption.  Again, not to belabor the point, but one cannot forget that, traditionally speaking, a child’s parents were his mother and father (not his mother and mother or father and father); this can no longer be assumed.  Indeed, in a situation where a child is born to two people of the same sex, whose names are put on the birth certificate?  Both “mothers”?  Both “fathers”?  Obviously some sort of contractual arrangement for the provision of a sperm or egg donation would be required to have a child in a same-sex relationship so, as a result, I see no reason to expect the biological provider of the sperm or egg to be on the birth certificate.  “Logic” (if there is any as applied to justifying same-sex “marriages”) would seem to dictate that both women or both men would be on the birth certificate as the child’s “parents.”  With this in mind, consider the following very possible scenarios.  A woman “marries” another woman and has a child and both are the child’s “parents” according to the child’s birth certificate.  The women then divorce and one of the women subsequently gets into a relationship (or even marries) a man (indeed, if we take the “B” (“bisexuality”) in LGBT seriously I see no reason to discount this from occurring).  Does the man have a right to adopt the child?  The role of “father” has not been assumed by either “mother” so why should not he be able to adopt to create a trio of legal parental figures?  Similarly, what would stop a child who has, say, two legally “married” fathers, to be also adopted by a woman so she could become his “mother” as, prior to her adoption of the child, the child has no mother?  Alternatively, what if a man and woman conceive a child out of wedlock (and both the mother and father are on the child’s birth certificate) and then, subsequently, the man “marries” another man?  Why cannot that man who “married” the father adopt the child and become a “second father?”  After all, the role of “second father” is not a role played by the mother and, in light of man/man “marriages,” such a role apparently does exist.  Once the mother-and-father parental paradigm is abandoned, I see no logical or philosophical reason to stop at just the three parents contemplated above and, therefore, any number of permutations are possible.

As something of a parenthetical, I would like to briefly note that the assault on parenthood that things like same-sex “marriage” pose are built upon an underlying philosophical foundation that rejects the reality, need, significance, and/or distinction of/between the genders (just to be clear, by “genders” I, of course, mean male and female).  The proposition that “two fathers” can form a family unit that can claim any sort of parity or equity with the traditional mother-father family unit presumes, by definition, that a mother (which is to say a woman) does not and/or cannot offer anything unique and/or critical and/or significant to parenting a child that a man can (obviously the same applies the other way with “two mothers” implicitly presuming that a father (a man that is) also has nothing unique and/or critical and/or significant to parenting a child).  If each gender did offer something unique and/or critical and/or significant to parenting a child, then this absurd masquerade and/or parody of a two parent family featuring “two fathers” or “two mothers” would not even be considered much less formally recognized through the American legal system.  It goes without saying that the rejection of gender has opened the flood gates to things like the progress of the “trans” movement, same sex “marriage,” same sex adoption, and the like that has been seen in recent years.  These issues are the subject of another post; I just wanted to point out the above as something to note when thinking through these issues.

Now, some readers may note that there are families of all arrangements and that all could have something positive to offer.  Not everyone has a “perfect” family structure.  Indeed, the adoption of a child by a non-biologically related individual is an ancient and honorable practice.  How do these sorts of things fit in light of the above?  The first thing, I think, one has to acknowledge is that it is obviously true that not all families have, or even can have, a “perfect” family structure of a biologically related (and married) mother and father and their children. The children in these non-traditional families need as much love, guidance, and support as any other child.  The difference that these non-traditional families have – as compared to a same-sex parental family – is that they are known to be clearly not the ideal and it would be preferred for them to come closer to the ideal.  No one thinks that a non-traditional mother-and-father family which loses one to, say, death, is the same as one which did not lose one.  Instead, we view the loss of the parent as tragic and try and help the single parent.  The same goes for the non-traditional family created as a result of divorce or from conceiving a child out-of-wedlock.  No one thinks that the family structure that results from divorce and/or the circumstances which led to the divorce and/or conceiving a child out-of-wedlock have some sort of parity or equity with a traditional mother/father relationship.  Divorced parents and/or single parents may be excellent parents who truly love their children, but it is near-universally recognized that these are obviously not the ideal that a traditional mother/father home life can provide a child.  These examples are all contra-distinct from same-sex “parents” which are consistently presented as having a parity and/or equity with mother/father families (and, of course, thinking otherwise earns one the label of “homophobe”).

In terms of adoption, the context and purpose of adoption are profoundly different from that of same-sex “parents.”  An adoption is something that occurs as a way to remedy a tragedy and/or unfortunate circumstance (e.g.: a death of a parent or a divorce).  A child who is the subject of an adoption is a child who is lacking a parent  (or, indeed, both parents) and someone else steps in to fill the role of parent for that child that his biological parent has been unable to fill.  The adopting parent is acting with selfless mercy, love, and sacrifice when he elects to help a child through adoption by doing what he can to help heal the wounds that child has due to lacking a parent.  Adoption is a method by which a broken family can try and become whole again for that child.  Same-sex “parents” present a situation that is precisely opposite to that of adoption.  Same-sex “parents” do not try and remedy a broken family for a child, they are the cause of the broken family by intentionally depriving a child a mother (or father).  Furthermore, same-sex “parenting,” far from being the self-sacrificial act of adoption, is the inherently selfish act of intentionally depriving a child his mother (or father) in order to fill his/her own desire and want of having a child (regardless of how depriving the child of his other parent may affect the child).

Indeed, this selfishness was seen first hand with Elton John who took on a child with his “husband” knowing that it will “break [his] son’s heart” when he learns he has not got a mother (see here for more on this).  When considering “parents” like Elton John, I cannot help but think of King Solomon in 1 Kings 3:16 – 28.  This Biblical passage is the famous story of the two women who each claim to be the mother of the same child.  Solomon, in his wisdom, orders the child cut in half so both can have an equal share of the child.  When he gives the order, one woman accepts it because she simply and selfishly wants a child, while the other laments it and gives up her share of the child to the other woman to save the child’s life.  In response, Solomon adjudges the woman who gave up her share as the true mother as a mother is selfless toward her children and would never harm her own child.  As I stated above, same-sex “parents” create a division between children, sex, parents, and marriage.  I think Solomon’s wisdom applies to Elton John just as much as it did to that woman in the Bible, and something tells me that Solomon would not adjudge Elton John to be “his son’s” father as, by choosing to intentionally harm the child by “breaking his heart,” he has proven himself not to be the child’s father and simply someone who selfishly just wants a child.  This, of course, is an obvious consequence of philosophically separating children from parents and both from sex and marriage.

In wrapping up what has become a rather long post, I think it is worth exploring when any of the above will occur.  I do not think it will happen immediately as Western Civilization has just embarked the same-sex “marriage” experiment and needs to adjust to it.  The consequences of this experiment will reveal themselves gradually over time and may not be seen for some time.  I also think that Western Civilization still functions within, at least superficially, the superstructure created by Christian moral teaching.  To this point, Christian philosopher Alasdair MacIntyre in his book After Virtue (see here) presents a compelling case.  MacIntyre’s basic thesis is that in the many centuries prior to the Enlightenment, Christian moral teaching was the standard moral paradigm in Western Civilization and that paradigm rested comfortably atop the Christian foundation that formed the basis of the culture of Western Civilization.  The Enlightenment attempted to jettison the Christian foundation of Western Civilization and replace it with other more humanistic philosophies, yet, despite the jettisoning of the Christian foundation, the new and more humanistic philosophies which replaced it (in perhaps unintentionally ironic way) recognizes the value of Christian moral teaching and attempted to justify it without reference to Christian teaching.  Naturally, Christian moral teaching is incompatible, and indeed incoherent, resting on top of a foundation developed through the Enlightenment and that incompatibility is now becoming apparent, and why things like the legalization of no-fault-divorce, the legal recognition of same-sex “marriage,” and the legalization of abortion and euthanasia, and other similar things, have come to pass.  So, all that to say that the paradigm that a child has “two parents” is one which is deeply ingrained into human culture due to obviously the consequences of biology, but also because of the moral superstructure our culture has adopted from its Christian foundational history.  As we have seen with the advance of same-sex “marriage” and parenthood (as noted above), the biological reality of parenthood has become irrelevant, therefore, just it has elsewhere, it is only a matter of time when the Christian presumption of “two parents” is seen to be without foundation in a culture without a Christian foundation, and will fall by the wayside like other things already have.

Perhaps a bigger issue, though, is the overall devaluing of children and their commoditization (which, like a couple of other things noted above, is a subject for another post).  The over emphasis on children – say on Facebook or with “helicopter parents” – could imply that children are overvalued, but I view those developments as evidences as more consistent with their devaluation through their commoditization.  In today’s Western Civilization, children are no longer a gift and a blessing.  Instead, they are a cost, cramp in one’s style, and/or an accessory, and if they are too much of a cost and/or interruption in a parent’s life, they are easily killed off through abortion, or, if permitted to be born, neglected through the constant purchase of things to distract them (like the modern obsession with screens), lax parenting, and/or their consignment to camps, babysitters, daycare centers, and/or one too many after-school activities.  Indeed, it has been admitted by the pro-abortion movement that the lives of children are simply not worth that of their mother (see here), which justifies their murder through abortion.  Children are something a woman has to “get rid of” and fast (see here).  For many men  – including many who I come into contact through my office – children are nothing more than a child support order to avoid or reduce.  The devaluing of children is seen in the fact that the birth rate in Western Civilization is at historic lows and continuing to decline (see here).  So, needless to say, there will be some delay in the rise of poly-parenting simply because so many people in Western Civilization simply do not care about children or becoming a parent as our culture succumbs to a culture of death, decadence, and ever increasing egocentrism and narcissism.

When our culture abandoned the inherent, and implicit, connection between sex, parenting, children, and marriage, the door was flung open to all manner of innovations and perversions.  The post-Christian culture has been entirely unable to replace the Christian foundation on which our morality was developed with anything that has proven itself to be coherent and/or workable.  As a result, I see no logical reason to expect the two-parent paradigm to be something that is untouchable and unchangeable.  It is only a matter of time before the malignancy that led to things like same-sex “marriage” will find its way to parents, mothers, fathers, and children.

Parental Kidnapping

So, it seems a little counter-intuitive to suggest that a parent could kidnap his/her own child, but there are times when, indeed, this sort of thing could indeed happen.

Most children are not subject to a court order for custody.  When there is no custody order entered by the court, each parent has one-hundred percent (100%) custody of their children.  So, for example, each parent has a right to make decisions for and about his/her children and take his/her children where ever s/he pleases whenever s/he pleases.  Of course, I am describing the parents’ legal rights.  Common courtesy, let alone respect for the other parent and the give and take of co-parenting, would warrant making decisions jointly with the other parent.

Unfortunately, the relationship of the parents of a child sometimes dissolves or, if they were not together, their cooperative approach to parenting can become less so or even adversarial.  When that happens one parent can (and sometimes does) take his/her child(ren) to some other location without informing the other parent; that location could be across the street or across the country.  If that happens, what recourse does the other parent have?  Well, for the purposes of this blog post, I can tell you one recourse s/he does not have: successfully reporting his/her child(ren) as kidnapped.  Remember when I said that each parent has 100% custody of his/her children above?  Well, this is an important way that fact comes into play.  As each parent has 100% custody of his/her children, when one parent takes his/her children with him/her to some other place without the knowledge or permission of the other, that parent is perfectly within his/her rights to do so as s/he has 100% custody of the children.  As a result, that parent cannot be guilty of kidnapping as one cannot kidnap someone over whom s/he has 100% custody.

The situation changes when there is a custody order applicable to those parents and child(ren).  In that case, if the parent takes the child(ren) across state lines without the knowledge and/or permission of the other parent at a time when that other parent is supposed to have court ordered custody of those child(ren), then the parent who took the child(ren) across state lines can be prosecuted for kidnapping.  The difference is this: a child custody order reduces a parent’s 100% custody to something less than that; a custody order takes away each parent’s 100% custody and replaces it with a percentage of custody proportional to the other parent.  So, for example, a court takes away the 100% custody from both parents and replaces it with granting, say, 70% to one and 30% to the other.  When one parent exercises custody during his/her time (say during the “70%”), that means the other parent does not have custody at that time and will not have custody except during his/her “30%” time.  When a parent has the child(ren) at a time when s/he does not have custody and goes across state lines, s/he is possession of child(ren) s/he does not have custody of at that moment.

To put it in a practical way, let’s say at a hearing one parent gets custody every other weekend while the other parent gets custody the rest of the time.  Obviously, every other weekend is drastically less than 100% custody and losing every other weekend is modestly less than 100% custody.  Either way, it is less than 100%.  So, for example, if the parent with every other weekend went across state lines with the child(ren) on a weekday – a day s/he did not have custody – that would be kidnapping for which/she could be criminally prosecuted for by the Commonwealth.

Keep the above in mind when advising clients, or making decisions as a parent in a custody dispute, in order to stay on the right side of the law!

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