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NBI Seminar: Child Custody and Visitation Rights: Termination of Parental Rights

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 “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

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 “Termination of Parental Rights.”

Thanks!

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The termination of a parent’s rights over his children nearly always occurs in one of two circumstances: voluntary adoption and dependency.

When termination is an issue, the court must appoint an attorney to represent the child when one or both parents contest the termination.  Of course, the court is always free to appoint counsel and/or guardian ad litem for the child.  A lawyer may not represent both the child and one of the parents.  As far as the parents facing possible parental termination are concerned, the court may, upon petition, also appoint an attorney for one or both of them in the event he or she is unable to pay for an attorney.

There are times when parents are willing to voluntarily terminate their rights to their children, typically called relinquishment, say in the context of adoption.  Another option, besides relinquishment, is signing a consent. A parent can sign a consent for their child to be adopted and not have to appear at future hearings.  23 Pa.C.S. § 2504.  Upon receipt of a petition to relinquish parental rights, as mentioned above, a hearing will be scheduled, at least ten days from the filing of the petition, in order for the court to review and rule upon the petition.  Relinquishment is under 23 Pa.C.S. § 2501-2502 and requires a hearing wherein a judge should make sure the parent understands the consequences of relinquishment and is fully aware of his right to trial.  Usually there is a colloquy by the judge or by the parent’s attorney to establish their understanding.

It should be noted that if there is a putative father, which is to say a man who has not been formally legally established to be a child’s father, he may have his rights terminated if he had not filed an acknowledgment of paternity or a claim for paternity and fails to appear at the termination hearing.

Perhaps one of the most compassionate sections of the applicable law toward the parents subject termination is the fact that the court has the obligation to inquire into whether those parents have received counseling.  If not, the court can refer him or her to a qualified counselor.  In the alternative, a parent subject to termination may apply for a referral to counseling as well.  To help facilitate counseling, the state has established a counseling fund pursuant to 23 Pa.C.S.A. §2505(e) to help those who are not in a financial position to afford counseling on their own.

Of course, termination of parental rights is a critical element of adoption and dependency.  Termination in the context of adoption is pursuant to 23 Pa.C.S.A. §2511.  In order to petition to terminate in this context, the parent must (1) evidence a “settled purpose of relinquishing [a] parental claim” over a child or fail to perform parental duties for a period of six (6) months immediately prior to filing to terminate; or, (2) demonstrate repeated abuse or neglect or continued incapacity; or, (3) the parent is the presumptive but not natural father of the child; or, (4) the child is in the custody of an agency and the parent is unknown (and does not claim the child within three months after being found); or, (5) the child has been removed from the care of the parent by court or voluntary agreement for a period of at least six months and the circumstances which led to the removal still persist with no reasonable expectation to improve; or, (6) a newborn child where the parent knows (or should know) of the child but takes no action to be a parent (e.g.: reside with the child or marry the other parent) for a four month period; or, (7) the parent is a father of a child conceived through rape; or, (8) the parent has been convicted of a serious crime (as listed in the statute); or, (9) the parent has committed sexual abuse or is a registered sex offender,

If a parent exhibits no sign of interest in the child over an extended period – typically about six months – he will be at risk of termination.  The Court has made it clear that a child is not an “unwanted toy” for a parent to pick up and play with at his whim and set it down again when tired of it.  Relatedly, being the fun and occasional playmate is not the same as being an involved parent.  Additionally, parental involvement is more than merely paying support or paying for various expenses.  A parent is more than a benefactor.  Interestingly, absence due to incarceration does not necessarily provide sufficient grounds for termination.  Of course, the six month interval is not mechanically applied.  The Court is to fully analyze the underlying matter to determine why there has been such extended absence, and to view the totality of circumstances before ordering termination.

Those who may petition to terminate another person’s parental rights are limited to (1) either parent; (2) an agency; (3) the person who has custody and standing as in loco parentis and has filed a report of intention to adopt; and/or (4) a guardian ad litem of a dependent child.

The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the grounds listed in 23 Pa.C.S.A. §2511.  If the aforesaid evidentiary standard is met, then the court may consider whether the termination is for the best interests of the child.  As with virtually any other issue regarding the custody or placement of children, the best interests of the child are paramount.  The court is to give primary consideration to the developmental, physical, and/or emotional needs and welfare of the child.  See 23 Pa.C.S.A. § 2511(b)  The statute is clear that issues surrounding environmental factors will not be the sole basis of termination.  Environmental factors include housing, furnishings, income, clothing, medical care, and the like if they are beyond the control of the parent.  Finally, if a parent attempts to remedy the issues and conditions provoking the termination petition after the petition is filed, the court will likely not consider them.  See 23 Pa.C.S.A. §2511(b)

After the filing of a petition for termination, a hearing is held with at least ten days’ notice to the parents, putative father, and parent of a minor parent who has not been terminated.  Following termination, the terminated parent may not object to any adoption proceeding for the child.  Terminated parents nearly always have the right to file updates of his or her personal medical history information after termination.

Resources:

  • 23 Pa.C.S.A. §2313
  • 23 Pa.C.S.A. §2501
  • 23 Pa.C.S.A. §2502
  • 23 Pa.C.S.A. §2503
  • 23 Pa.C.S.A. §2505
  • 23 Pa.C.S.A. §2511
  • 23 Pa.C.S.A. §2512
  • 23 Pa.C.S.A. §2513
  • 23 Pa.C.S.A. §2521
  • In Re L.M., 923 A.2d 505 (Pa.Super. 2007)
  • Baby Boy A. v. Catholic Social Services, 517 A.2d 1244 (Pa.1986)
  • v. Arnold, 665 A.2d 836 (Pa.Super.1995)
  • In re Burns, 474 P. 615 (1977)
  • In re C.S., 761 A.2d 1197 (Pa.Super.2000)
  • In re J.L.C., 837 A.2d 124 (Pa.Super.2003)
  • In re T.F., 847 A.2d 738 (Pa.Super.2004)
  • In re K.K.R.-S., K.M.R. & K.A.R., 958 A.2d 529 (Pa.Super.2008)
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NBI Seminar: Child Custody and Visitation Rights: Questions of Paternity

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 “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

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 “Questions of Paternity.”

Thanks!

__________

III.       CHILD CUSTODY AND VISITATION RIGHTS

C.     Questions of Paternity

Historically the law regarding children born out-of-wedlock (i.e.: so-called “bastards”) was different than that regarding a child born into a family, which disadvantaged and stigmatized them.  Now, however, by contrast, parents, no matter the circumstances of the birth of their children, all have equal rights under the law.  The establishment of paternity entitles the person who is awarded it to custodial rights over the child-at-issue.

There are six ways in which paternity can be established: (1) voluntary acknowledgment; (2) stipulation to be bound to the results of a genetic test; (3) estoppel; (4) presumption; (5) hearing/trial; and, (6) failing to appear for testing, trial, and/or hearing for paternity.  An action to determine paternity for a child born out of wedlock may be commenced at any time until the child turns eighteen years old.

A child born into a marriage is presumed to be the child of the father in that marriage and this presumption is typically only rebutted through showing impotence or the impossibility of sexual access.  23 Pa.C.S.A. §5104(g).  In situations when a child is born out-of-wedlock, paternity may be determined by (1) the parents eventually marrying and/or (2) through clear and convincing evidence that the purported father has provided financial support and/or received the child into his home and has held the child out as his, and/or (3) clear and convincing evidence of actual paternity (e.g. positive paternity testing which is prima facia evidence of paternity).  The presumption of paternity in the context of marriage is for the purpose of preserving stable family units for the children within them.

Of course, a putative father may also acknowledge paternity in a verified writing.  This is often done at a child support conference/hearing where a man submits to a support order for a child he acknowledges as his own.  If a man appears at a support hearing but refuses to acknowledge paternity, the court is to enter an order directing the parties to appear for genetic testing.  Perhaps obviously, the mother is, by statute (23 Pa.C.S.A. §2513(c)) considered to be a competent witness to paternity.  The putative father may contest the results of the genetic testing, but, to do so, he must marshal clear and convincing evidence that the test is somehow not reliable.  If the test itself is not conclusive (i.e.: results in less than 99% probability), the court will schedule the matter for trial.

Estoppel occurs when a man holds a child out as his own regardless of biological relationship.  It could also occur when a woman holds him out as the father despite biological relationship.  Estoppel, basically, is the prohibition of denying paternity after holding a child out as one’s own, regardless of his relation to the child.  Estoppel, at its essence, is designed to prevent putative fathers from denying parentage at some point in the future.  “Hold out as his own” is typically evidenced by spending time with the child, living with the child, the child bearing the man’s name, the child calling him “dad,” the man representing to others he is the father, and so on.  In situations such as this, this man will be estopped from denying paternity and genetic testing may not be admitted to contradict paternity.  Relatedly, if a man other than the apparent father denies paternity, a mother may not pursue genetic testing on the alleged father due to the presence of the apparent father.  Again, similar to the presumption from a marriage, it is believed permanency is in the best interests of the child.  Furthermore, estoppel is most often applied in situations where a man has held himself out as a child’s father only to try and deny paternity when/if child support is ordered at some point in the future.  As estoppel often relies upon timing (e.g.: failing to move immediately for genetic testing upon learning of a claim of paternity) the Pennsylvania Superior Court observed that the law is starting to soften on its application and stated “paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child.”  T.E.D. v. C.A.B. v. P.D.K., Jr., 74 A.3d 170 (Pa.Super.2013).

There are times, of course, when more than one man claims to be the father of a child.  The Pennsylvania Supreme Court has ruled on who may request a paternity test and/or challenge paternity and/or be denied the right to seek paternity.  In the matter of Brinkley v. King, 549 Pa. 241 (1997) the Supreme Court, through a plurality opinion, laid out the required analysis to determine the paternity of a child conceived or born during a marriage.  First, one must determine whether the marriage presumption of paternity applies and, if so, whether it has been rebutted.  Second, if the presumption has been rebutted, one must then determine if estoppel applies to bar either a plaintiff from making a claim or a defendant from denying paternity.

The underlying principle of the presumption is the preservation of marriage, in other words, the protection of an intact family.  If the presumption does not apply one must then determine whether the man seeking paternity is estopped from attempting to strip another man’s claim to paternity of a child born during marriage and/or held out as his own.  It should be noted that one’s delay or inactivity in seeking paternity may bar him from doing so.  Again, best interests – in this instance the stability of a child’s life – is paramount.

Of course, there are times when fraud is claimed regarding paternity and, if demonstrated, the argument of estoppel could be precluded.  In order to successfully argue fraud, a party must demonstrate: (1) a misrepresentation; (2) a fraudulent utterance; (3) intention to induce action by the recipient; (4) justifiable reliance on the utterance; and, (5) damages.

Resources:

  • R.C.P. 1910.15
  • 23 Pa.C.S.A. §2313
  • 23 Pa.C.S.A. §2502
  • 23 Pa.C.S.A. §2513
  • 23 Pa.C.S.A. §4343
  • 23 Pa.C.S.A. §5102
  • 23 Pa.C.S.A. §5103
  • 23 Pa.C.S.A. §5104
  • Rosado v. Diaz, 425 Pa.Super. 155 (1993)
  • Liebner v. Simcox, 834 A.2d 606 (Pa.Super.2003)
  • Karner v. McMahon, 640 A.2d 926 (1994)
  • John M. v. Paul T., 524 Pa. 306 (1990)
  • Freeman v. McCandless, 539 Pa. 584 (1995)
  • Buccieri v. Campagna, 889 A.2d 1220 (Pa.Super.2005)
  • Conroy v. Rosenwald, 940 A.2d 409 (Pa.Super.2007)
  • Warfield v. Warfield, 815 A.2d 1073 (Pa.Super.2003)
  • Hamilton v. Hamilton, 795 A.2d 403 (Pa.Super.2002)
  • Gebler v. Gatti, 895 A.2d 1 (Pa.Super.2006)
  • O. v. C.O., 404 Pa.Super. 127 (1991)

NBI Seminar: Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation

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 “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

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 “Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation.”

Thanks!

__________

III.       CHILD CUSTODY AND VISITATION RIGHTS

B.   Motion for a Change of Custody or Visitation

A party to a custody order has a right to seek its modification.  Contrary to popular belief, one does not need to allege that there has been a change in circumstances in order to seek, or have, a modification of a custody order.  The form and process of drafting and filing a petition to modify custody is substantially the same as a complaint for custody and the series of hearings which follow are also the same.

            There are instances where an attorney files something entitled a complaint (or petition) to “Confirm Custody.”  It does not appear that such a filing is derived from an actual procedural category or practice.  Instead, it merely appears to be a standard complaint or petition for custody given a different title for, apparently, the sole purpose of giving the filer some sort of rhetorical capital or high ground, as “confirming custody” implies that person is already entitled to custody and is merely filing to “confirm” it.  Alternatively, it is sometimes used in situations where there is already an existing “informal” custody arrangement (i.e.: without a court order), and the person filing merely wishes to “confirm” that custody arrangement in a court order.  This merely appears to be a stylistic preference, and not based on any law or procedure, and, therefore, has no practical effect on a custody matter.

 

 

NBI Seminar: Child Custody and Visitation Rights: A Petition for Visitation and/or Custody

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 “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

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 “Child Custody and Visitation Rights: A Petition for Visitation and/or Custody.”

Thanks!

__________

CHILD CUSTODY AND VISITATION RIGHTS

  1. A. Petition for Visitation and/or Custody

Like nearly any other court case, all custody actions – regardless of how much custody is being sought (e.g.: primary, partial, or visitation, etc) – begin with the filing a complaint.  The Pennsylvania Rules of Civil Procedure provide for a standard form for a complaint, which can be found in Pa.R.C.P. Rule 1915.15 and 1915.16.

The various county courts in the Philadelphia area offer forms for custody complaints, and they can be found at the following websites:

 

  • Elements of a Complaint

As one can see from reviewing the forms mentioned above, a standard complaint for custody is to include, more or less, the following information:

Unlike a civil complaint, very little additional information or advocacy needs to be included in the complaint for custody.  The opportunity to advance additional information and/or advocacy is when interacting with the opposing party or attorney and/or at a hearing scheduled pursuant to the filing of the Complaint.  The purpose of the custody complaint is merely to get the most basic information before the court: who the case involves, what the Plaintiff wants, and an assertion that no other court has jurisdiction.

When requesting relief in the complaint, it is important to use the proper language which best describes why the Plaintiff is seeking.  23 Pa.C.S.A. §5322 lays out the terms and their definitions.  Pursuant 23 Pa.C.S.A. §5322, the relevant terms are as follows (as quoted directly from the statute):

  • legal custody: the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
  • sole legal custody: the right of one individual to exclusive legal custody of the child.
  • shared legal custody: the right of more than one individual to legal custody of the child.
  • physical custody: the actual physical possession and control of a child.
  • sole physical custody: the right of one individual to exclusive physical custody of the child.
  • primary physical custody: the right to assume physical custody of the child for the majority of time.
  • shared physical custody: the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
  • partial physical custody: the right to assume physical custody of the child for less than a majority of the time.
  • supervised physical custody: custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
  • In a statutory provision other than in this chapter, when the term “visitation” is often used in reference to child custody, and may be construed to mean:

(1) partial physical custody;

(2) shared physical custody; or

(3) supervised physical custody.

In the vast majority of case, the only issue in dispute is physical custody as, unless there is unusual and/or extenuating custody (e.g.: incarceration, absence, abuse), the parents of a child are both presumed to have a right to shared legal custody.  As defined above, physical custody is when a parent actually has a child personally with him.  By contrast, legal custody is the right of a parent to have access to, and make decisions regarding, important parenting and lifestyle issues.

It is also important to observe the fact that the specific definitions of/for the terms above do not always coincide with popular or colloquial usage.  It is very common for a client, when consulting with his attorney, to use one or more of the terms above without reference to its technical, legal, definition; therefore, it is important to discern precisely what a client is seeking instead of assuming even a vague familiarity, much less a fluency, with the terms mentioned above.  For example, many clients, when consulting with their attorney or filing a custody petition on a pro se basis, frequently indicate they are seeking “full custody” of their children, despite the fact that no such designation exists; similarly, they often refer to “sole custody” in the same way.  In addition, it is not uncommon for someone to use the term “visitation” when he really means “partial custody.”  So, it is important to discern what the client actually means sometimes despite the precise words being used.

Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise

Although the so-called Wiseman standard, the standard by which shared custody arrangements were determined, stood for many years, the recent Pennsylvania Superior Court case of P.J.P. v. M.M., 2018 Pa. Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

In the matter of P.J.P., a custody case, the father appealed a decision in the trial court regarding his petition to modify a custody order that he believed was not sufficiently favorable for his custody goals.

The father and the mother are a divorced couple who obtained a child custody order in April 2016. This order granted the mother primary physical custody of the child. In January 2017, the father sought more custody, specifically shared physical custody, and filed a petition to modify.

At the trial, in August 2017, the court made many findings of facts that are directly relevant to its ultimate decision to deny granting shared custody to the father. For example, when the mother has custody she sends the father many photographs and videos and encourages the child to call the father. By contrast, the father does not want to call the mother during his custody times and sends no photographs and videos to the mother. The mother further claimed, and the father admitted, that he has insulted the mother in the presence of the child. He also admitted to telling the child to be sure to look up the instant case on Google Scholar when he is older to know what happened during the case. The mother is also conscientious in ensuring that the father has nice gifts from the child for holidays and such, while the father makes only modest efforts to reciprocate. The parties also had disagreements over the procedure and process for dropping the child off at preschool in the morning. The mother claimed the father refused to get the child ready and just dropped him off at her house, while the father claimed the mother “unilaterally” changed the procedure. Co-parenting counseling was also attempted by the parties. Unfortunately, while the mother was trying to fully invest herself in said counseling, The father refused to meaningfully participate, and the counselor believed the counseling was “not going anywhere.” Of course, the father has a different interpretation of much of the above, but the court made its findings, which favored the mother, after a complete review of the facts, testimony and evidence.

On appeal, the father challenged the denial of shared custody, arguing it was contrary to the best interests of the child. The Superior Court first noted that the trial court made certain credibility determinations that were within its discretion. The court then mentioned that child custody is governed by 23 Pa.C.S.A. Section 5328, which lays out 16  factors for the court to consider when making a custody determination. Superior Court observed that the trial court analyzed each factor and noted that most were either inapplicable or weighed equally for both; however, there were four factors (namely the likelihood to encourage and permit contact with the other party, availability of extended family, attempts to turn the child against the other parent, and the level of conflict and willingness to cooperate with the other party) which weighed heavily on the mother’s side. No factor weighed heavily on the father’s side.

The father argued that the trial court abused its discretion by failing to apply the Weisman standard. In Weisman v. Wall, 718 A.2d 844 (Pa. Super.1998), the court ruled that courts must make four findings when ruling on shared custody “both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; both parents must evidence a continuing desire for active involvement in the child’s life; both parents must be recognized by the child as a source of security and love; a minimal degree of cooperation between the parents must be possible.” The father further argued that since he and the mother, in his view, meet the above four factors, shared custody should be awarded.

Superior Court ruled that the father’s reliance on Weisman is misplaced. As noted above, Weisman was decided in 1998 while Section 5328 became law in 2011. The court does not believe the difference between Weisman and Section 5328 is trivial. Specifically Weisman “required the court, before awarding shared custody, ‘to make at least a minimal finding that the parties were able to cooperate before awarding shared custody” while, under Section 5328, the court “must determine the best interest of the child by considering all relevant factors, including but not limited to, ‘the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.”’

Superior Court noted that the plain language of Section 5328 contradicts Weisman. Unlike Weisman, the court is not obliged to make any specific findings before awarding shared custody. Instead, the court must consider all 16 of the relevant factors, and poor cooperation need not be dispositive. In sum, therefore, Superior Court specifically described Weisman as obsolete.

Finally, the court explained that its citing to Weisman in the recent case of R.S. v. T.T., 1133 A.3d 1254 (Pa.Super.2015) does not belie the above analysis. In R.S., the court used the Weisman factors to supplement its own analysis where it seemed Section 5328 did not appear to lead to a reasonable conclusion in light of the available evidence. Moreover, the court in R.S. never once said trial courts “must” make Weisman findings. Instead, Weismanmerely holds persuasive value as the its factors have been assimilated into Section 5328.

Upon full review of the decision, it appears that P.J.P. has hammered the final nail into the casket of the Weisman analysis. Weisman, for all intents and purposes, no longer appears to be the law for Pennsylvania child custody.

Originally published in The Legal Intelligencer on July 5, 2018 and can be seen here and reprinted in the Pennsylvania Family Lawyer in September 2018 and can be seen here.

Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here and was reprinted in the Pennsylvania Family Lawyer for its March 2018 edition. (see here).

A Collection of Family Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of family law issues and legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Musings:

My Life in Concerts: the Complete List

[Updated: August 6, 2018]

Over the course of the last 23 plus years, I have enjoyed the opportunity to go and see many bands in a live setting.  As my readers know, I have seen Yes by far the most, but, contrary to popular belief, Yes (and their openers) is/are not the only band(s) I have ever seen live.

After so many years and shows, I thought it would be fun to try and list and catalogue all the shows I have seen.  I think the list below is about as comprehensive as I can create, and it does not, obviously, include live bands in bars and community festivals and such.

I have also, over the course of this blog, put up numerous posts of tour programs, tickets, reviews, and other things I have collected over the years at concerts.  Here they are below:

Here is, what I think, is my complete list of concerts (229):

Yes (26):

Porcupine Tree (8):

  • 6/23/01: NEARFest 2001
  • 7/26/02: Theater of the Living Arts (with Tim Reynolds)
  • 11/8/02: Tower Theater (with Yes)
  • 7/20/03: Trocadero Theater (with Opeth)
  • 5/21/05: Trocadero Theater (with Tunnels)
  • 9/27/05: Keswick Theater (with Robert Fripp)
  • 10/7/06: Keswick Theater (with ProjeKCt Six)
  • 9/26/09: Electric Factory (with King’s X)

The Musical Box (7):

  • 2/26/04: Keswick Theater
  • 7/9/04: NEARFest 2004
  • 12/17/04: Keswick Theater
  • 12/10/05: Tower Theater
  • 10/20/06: Tower Theater
  • 12/15/07: Tower Theater
  • 8/3/13: Camden Tweeter Center (with Yestival)

Renaissance (3):

  • 10/11/09: Keswick Theater
  • 6/23/12: NEARFest 2012
  • 8/3/13: Camden Tweeter Center (with Yestival)

Philadelphia Orchestra (3):

  • 4/5/05: Verizon Hall
  • 9/24/05: Verizon Hall
  • Another date: Mann Music Center

Änglagård (2):

  • 6/29/03 NEARFest 2003
  • 6/23/12 NEARFest 2012

Asia (2):

Banco del Mutuo Soccorso (2):

Bela Fleck and the Flecktones (2):

  • 8/1/96: Keswick Theater
  • 8/5/08: Mann Music Center (with Return to Forever)

DFA (2):

  • 6/17/00: NEARFest 2001
  • 6/20/09: NEARFest 2009

Echolyn (2):

  • 6/29/02: NEARFest 2002
  • 6/22/08: NEARFest 2008

Steve Hackett (2):

King Crimson (2):

Magma (2):

Mike Keneally Band (2):

  • 7/10/04: NEARFest 2004
  • 6/24/12: NEARFest 2012

PFM (2):

Riverside (2):

Tunnels (2):

  •  6/28/03: NEARFest 2003
  • 5/21/05: Trocadero Theater (with Porcupine Tree)

Van Der Graaf Generator (2):

  • 6/19/09: NEARFest 2009
  • 6/22/12: NEARFest 2012

Carl Palmer ELP Legacy Band (2):

  • 8/3/13 Camden Tweeter Center (with Yestival)
  • 8/15/17: Hershey Theater – Yestival Tour

Other (152):

  • Acoustic Trio (Stanley Clarke, Bela Fleck, Jean Luc Ponty): 8/12/05 Mann Music Center
  • After Crying: 6/24/01 NEARFest 2001
  • Alamaailman Vasarat: 6/28/03 NEARFest 2003
  • Alan Parsons Project: 6/27/98 Camden Blockbuster Center (with Yes)
  • Anderson/Ponty: 10/27/15 Keswick Theater
  • Anekdoten: 6/17/00 NEARFest 2000
  • Ange: 6/25/06 NEARFest 2006
  • Aranis: 6/22/12 NEARFest 2012
  • Astra: 6/19/10 NEARFest 2010
  • Beardfish: 6/21/09 NEARFest 2009
  • Bird Songs of the Mesozoic: 6/23/01 NEARFest 2001
  • The Black Eyed Peas (with Rita Marley and Stephen Marley): 7/2/05 Live 8
  • Bon Jovi: 7/2/05 Live 8
  • Cabezas de Cera: 6/20/09 NEARFest 2009
  • California Guitar Trio with Tony Levin: 6/24/01 NEARFest 2001
  • Camel: 6/29/03 NEARFest 2003
  • Canned Heat: 1/21/05 Keswick Theater (with Mountain and Vanilla Fudge)
  • Caravan: 6/30/02 NEARFest 2002
  • Dave Matthews Band: 7/2/05 Live 8
  • Def Leppard: 7/2/05 Live 8
  • Destiny’s Child: 7/2/05 Live 8
  • Deus Ex Machina: 6/23/01 NEARFest 2001
  • Discipline: 6/21/08 NEARFest 2008
  • Dixie Dregs: 4/7/05 Theater of the Living Arts (with Steve Morse Band)
  • Djam Karet: 6/24/10: NEARFest 2001
  • DJ Green Lantern: 7/2/05 Live 8
  • DJ Jazzy Jeff (with Will Smith): 7/2/05 Live 8
  • Bob Drake: 6/23/07: NEARFest 2007
  • Dream Theater: 9/3/04 Allentown Fairgrounds (with Yes)
  • KBB: 6/24/06 NEARFest 2006
  • Keith Emerson: 6/25/06 NEARFest 2006
  • Enchant: 6/30/02 NEARFest 2002
  • The Enid: 6/20/10 NEARFest 2010
  • Fish: 6/20/08 NEARFest 2008
  • The Flower Kings: 6/28/03 NEARFest 2003
  • FM: 6/24/06 NEARFest 2006
  • Forgas Band Phenomena: 6/19/10 NEARFest 2010
  • Peter Frampton: 6/15/10 Tower Theater (with Yes)
  • Robert Fripp: 9/27/05 Keswick Theater (with Porcupine Tree)
  • Frogg Cafe: 7/9/05 NEARFest 2005
  • Gerard: 6/30/02 NEARFest 2002
  • Glass Hammer: 6/29/03 NEARFest 2003
  • Gong: 6/20/09 NEARFest 2009
  • Gosta Berlings Saga: 6/24/12 NEARFest 2012
  • Josh Groban (with Sarah McLachlan): 7/2/05 Live 8
  • Guapo: 6/25/06 NEARFest 2006
  • Peter Hammil: 6/21/08 NEARFest 2008
  • Happy the Man: 6/17/00 NEARFest 2000
  • Hatfield and the North: 6/23/06 NEARFest 2006
  • Hawkwind: 6/23/07: NEARFest 2007
  • Helmet of Gnats: 6/23/12 NEARFest 2012
  • Hidria Spacefolk: 7/11/04 NEARFest 2004
  • High Wheel: 6/28/03 NEARFest 2003
  • Steve Hillage: 6/19/09 NEARFest 2009
  • Allan Holdsworth: 6/22/07: NEARFest 2007
  • Iluvatar: 6/17/00 NEARFest 2000
  • Il Balletto di Bronzo: 6/18/00 NEARFest 2000
  • Il Tempio delle Clessidre: 6/24/12 NEARFest 2012
  • Indukti: 6/24/07: NEARFest 2007
  • Iona: 6/19/10 NEARFest 2010
  • IQ: 7/9/05 NEARFest 2005
  • IZZ: 6/23/07: NEARFest 2007
  • Isildur’s Bane: 6/29/02 NEARFest 2002
  • Jars of Clay: 7/2/05 Live 8
  • Jay-Z (with Linkin Park): 7/2/05 Live 8
  • Jethro Tull: 8/9/03 MusikFest
  • Eddie Jobson / UKZ: 6/20/10: NEARFest 2010
  • Richard Leo Johnson: 6/24/06 NEARFest 2006
  • Kaiser Chiefs: 7/2/05 Live 8
  • Kansas: 7/18/00 Camden Blockbuster Center (with Yes)
  • Toby Keith: 7/2/05 Live 8
  • Kenso: 7/10/05 NEARFest 2005
  • Alicia Keys: 7/2/05 Live 8
  • King’s X: 9/26/09 Electric Factory (with Porcupine Tree)
  • Knight Area: 7/10/05 NEARFest 2005
  • Koenji Hyakkei: 6/21/08 NEARFest 2008
  • Kraan: 6/29/03 NEARFest 2003
  • La Maschera di Cera: 6/24/04: NEARFest 2007
  • La Torre dell’Alchimista: 6/29/02 NEARFest 2002
  • Le Orme: 7/10/05 NEARFest 2005
  • Linkin Park (with Jay-Z): 7/2/05 Live 8
  • Liquid Tension Experiment: 6/21/08 NEARFest 2008
  • Magenta: 6/23/07: NEARFest 2007
  • Sean Malone: 7/11/04 NEARFest 2004
  • Michael Manring: 6/25/06 NEARFest 2006
  • Rita Marley and Stephen Marley (with The Black Eyed Peas ): 7/2/05 Live 8
  • Maroon 5: 7/2/05 Live 8
  • Sarah McLachlan  (with Josh Groban): 7/2/05 Live 8
  • Metamorfosi: 7/11/04 NEARFest 2004
  • Miriodor: 6/29/02 NEARFest 2002
  • Moraine: 6/20/10 NEARFest 2010
  • Morglbl: 6/22/08 NEARFest 2008
  • Mountain: 1/21/05 Keswick Theater (with Canned Heat and Vanilla Fudge)
  • The Muffins: 7/10/05 NEARFest 2005
  • NeBeLNeST: 6/23/07: NEARFest 2007
  • Nektar: 6/29/02 NEARFest 2002
  • Nexus: 6/18/00 NEARFest 2000
  • Niacin: 6/25/06 NEARFest 2006
  • Nicholas Payton Quintet: 10/19/97 Central PA Friends of Jazz
  • North Star: 6/18/00 NEARFest 2000
  • Oblivion Sun: 6/20/09 NEARFest 2009
  • One Shot: 6/22/07: NEARFest 2007
  • Opeth: 7/20/03: Trocadero Theater (with Porcupine Tree)
  • Ozric Tentacles: 6/24/06 NEARFest 2006
  • Pallas: 7/10/04 NEARFest 2004
  • Par Lindh Project: 6/18/00 NEARFest 2000
  • Matthew Parmenter: 7/10/05 NEARFest 2005
  • The Pineapple Thief: 6/20/10 NEARFest 2010
  • Richard Pinhas: 7/10/04 NEARFest 2004
  • Planet X: 7/11/04 NEARFest 2004
  • Present: 7/9/05 NEARFest 2005
  • Procol Harum: 7/20/12 Tower Theater (with Yes)
  • ProjeKCt Six: 10/7/06 Keswick Theater (with Porcupine Tree)
  • Proto-Kaw: 7/8/05: NEARFest 2005
  • Pure Reason Revolution: 6/24/04: NEARFest 2007
  • Quantum Fantasy: 6/21/09 NEARFest 2009
  • Radio Massacre International: 6/22/08 NEARFest 2008
  • Return to Forever: 8/5/08 Mann Music Center (with Bela Fleck and the Flecktones)
  • Tim Reynolds: 7/26/02: Theater of the Living Arts (with Porcupine Tree)
  • Robert Rich: 6/24/04: NEARFest 2007
  • Steve Roach: 7/9/05 NEARFest 2005
  • Todd Rundgren: 8/15/17: Hershey Theater – Yestival Tour
  • Scale the Summit: 8/3/13 Camden Tweeter Center (with Yestival)
  • The School of Rock: 8/3/13 Camden Tweeter Center (with Yestival)
  • Second Sufis: NEARFest 2003
  • Secret Oyster: 6/22/07: NEARFest 2007
  • Sleepytime Gorilla Museum: 629/03 NEARFest 2003
  • Will Smith (with DJ Jazzy Jeff): 7/2/05 Live 8
  • Spaced Out: 6/30/02 NEARFest 2002
  • Steve Morse Band: 4/7/05 Theater of the Living Arts (with Dixie Dregs)
  • Strawbs: 7/11/04 NEARFest 2004
  • Styx: 7/4/11 Camden Tweeter Center (with Yes)
  • Syd Arthur: 7/19/14 Upper Darby Tower Theater (with Yes)
  • Synergy (Larry Fast): 6/20/08 NEARFest 2008
  • Thinking Plague: 6/18/00 NEARFest 2000
  • Three Friends: 6/19/10 NEARFest 2010
  • The Tony Levin Band: 6/23/06 NEARFest 2006
  • Toto: 8/9/15: Borgata, Atlantic City (with Yes)
  • Transatlantic: 6/18/00 NEARFest 2001
  • Trettioariga Kriget: 6/21/09 NEARFest
  • Twelfth Night: 6/23/12 NEARFest 2012
  • U.K.: 6/24/12 NEARFest 2012
  • The Underground Railroad: 6/24/01 NEARFest 2001
  • Under the Sun: 6/24/01 NEARFest 2001
  • Univers Zero: 7/10/04 NEARFest 2004
  • Vanilla Fudge: 1/21/05 Keswick Theater (with Mountain and Canned Heat)
  • Volto!: 8/3/13 Camden Tweeter Center (with Yestival)
  • Rick Wakeman: 10/29/03 Electric Factory
  • Kanye West: 7/2/05 Live 8
  • White Willow: 6/23/01 NEARFest 2001
  • Wobbler: 7/9/05 NEARFest 2005
  • Yezda Urfa: 7/10/04 NEARFest

Sex Negative

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in First Things which, I thought, was pretty insightful.  Be edified.

_________________

The attitude toward sex in our secular culture is simultaneously tedious and disturbing. Tedious because of its predictability. Disturbing because of its profound negativity, despite absurd claims to the contrary.

A good example was provided last week by Aimee Byrd. Over at her Housewife Theologian blog, Byrd highlighted an online interview with a woman called “Gracie X.” The lifestyle Gracie describes will probably surprise no one. Her promiscuity and the fluidity of her relationships are nothing new. In the ’70s, people like Gracie were known as swingers. Today they are respectable members of the “ethical non-monogamy community.” The nomenclature is oxymoronic, the underlying attitude merely moronic.

As is conventional when today’s hard-hitting journalism deals with fringe lifestyles that mock traditional mores, the interviewer asks no hard questions and makes no critical observations. Such would be impolite and judgmental, I guess. Well, let me break once again with the contemporary canons of journalistic social commentary and offer a few impolite and judgmental observations of my own.

The language of the interview is revealing. The omnipresence of the first-person singular is quite remarkable, reminiscent of The Beatles song, “I, Me, Mine.” Yes, this really is all about Gracie. To be fair, she does claim that her refusal to control her libido is good for her children—but she also makes it very clear that even if they asked her to stop, she would not, because she is her lifestyle.

The best parts of the interview are those involving pious sub-Oprah psychobabble, such as this gem: “The biggest burden you can put on your child is an unfulfilled life. We really have to make sure we’re living.” Really? I suspect the burden of not having any kind of stable parental relationship to rely on might rank somewhere. But as long as a mature ten- to eleven-year-old is able to offer wise and informed support to an ethically non-monogamous parent, all will be well.

Most sadly disturbing is Gracie’s use of the term “sex positive” to describe her lifestyle. Clearly she enjoys sex. But that hardly amounts to being “sex positive.” Her view of sex seems so truncated and so emptied of any real meaning, so centered on herself, so reducible to physical pleasure, that it becomes little more than an act of mutual masturbation. To say that such represents a “positive” view of sex is akin to saying that the person who enjoys cluelessly bashing out random notes on a piano has a positive view of music. Sex with no deeper relational context is sex with no positively meaningful content, as Henry Miller demonstrated over eighty years ago in the tragicomic nihilism of the myriad encounters recounted in Tropic of Cancer.

There was once a time when sexual intercourse was thought to be full of rich social and emotional significance. Now, even our language betrays our impoverished and negative attitudes. That we speak of “having sex” and not of “making love”—that the latter phrase can even evoke sniggers—is significant. A man can have sex with a prostitute. He can only make love to a woman he knows and about whom he cares.

So is Gracie X “sex positive” in her attitude? Well, sexual intercourse used to mark the transition from childhood to adulthood. That has been taken away. Sex has been reduced thereby, as indeed has adulthood—the childish obsession of Gracie with herself is surely no accident. There was also a time when sexual intercourse was only considered legitimate between a man and woman committed to a lifelong partnership. It marked their exclusive relationship to each other. That too has been taken away. Sex is no longer the consummation of an exclusive bond. Now it is just a form of recreation. A bit like golf, but usually cheaper and generally without the plaid pants.

Fortunately, Gracie is an extremist, even by today’s standards. But she is the logical end term of our culture’s simplistic, pornographic, selfish, abusive, mechanistic, and, yes, negative view of sex. Sex’s sole significance is what it does for Gracie as an individual, and damn the consequences if that hurts anyone else. It is who she is, after all. Indeed, I imagine that even now some liberal Episcopalian bishop is desperately wrestling with how to be open and welcoming to the “ethical non-monogamous community.” Might I suggest that a minor change to the marriage liturgy is all that is needed? “With thy body I me worship.”

Joking aside, such a vow would be entirely appropriate because, superficial as Gracie’s understanding of sex is, she is actually advocating in practice the rather more sophisticated philosophy of the Marquis de Sade, whereby the other’s body is a mere instrument for her own personal satisfaction and nothing more. That we live in a time in which de Sade’s approach can be described as “sex positive” is not something to be celebrated. That we describe it that way simply reveals the impoverished, mendacious, and ultimately lonely view of sex and relationships that we are passing on to our children. We have robbed our children not only of stable families but also of the real joy of sex—of sex that exists as a vital part of a committed relationship and thus has more than mere momentary, physical significance.

Anyway, I look forward to Part II of the interview, scheduled for when Gracie turns seventy-five. That’s my own sadistic streak speaking. You see, I have a sneaking suspicion that growing old is going to be especially cruel for members of the “ethical non-monogamy community.”

By: Carl R. Trueman and published on August 31, 2016 in First Things can be seen here.

Students’ Broken Moral Compasses

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in The Atlantic which, I thought, was pretty insightful.  Be edified.

_____________________________

A few months ago, I presented the following scenario to my junior English students: Your boyfriend or girlfriend has committed a felony, during which other people were badly harmed. Should you or should you not turn him or her into the police?

The class immediately erupted with commentary. It was obvious, they said, that loyalty was paramount—not a single student said they’d “snitch.” They were unequivocally unconcerned about who was harmed in this hypothetical scenario. This troubled me.

This discussion was part of an introduction to an essay assignment about whether Americans should pay more for ethically produced food. We continued discussing other dilemmas, and the kids were more engaged that they’d been in weeks, grappling with big questions about values, character, and right versus wrong as I attempted to expand their thinking about who and what is affected—and why it matters—by their caloric choices.

I was satisfied that students were clearly thinking about tough issues, but unsettled by their lack of experience considering their own values. “Do you think you should discuss morality and ethics more often in school?” I asked the class. The vast majority of heads nodded in agreement. Engaging in this type of discourse, it seemed, was a mostly foreign concept for the kids.

Widespread adoption of the Common Core standards—despite resistance by some states—arguably continues the legacy of the No Child Left Behind Act. The 2002 law charged all public schools to achieve 100 percent proficiency in reading and math by 2014, meaning that all students were expected to be on grade level. This unrealistic target forced schools to track and measure the academic achievement of all students, a goal lauded by most, but one that ultimately elevated standardized testing and severely narrowed curricula. Quantifying academic gains remains at the forefront of school-improvement efforts to the detriment of other worthwhile purposes of schooling.

As my students seemed to crave more meaningful discussions and instruction relating to character, morality, and ethics, it struck me how invisible these issues have become in many schools. By omission, are U.S. schools teaching their students that character, morality, and ethics aren’t important in becoming productive, successful citizens?

For many American students who have attended a public school at some point since 2002, standardized-test preparation and narrowly defined academic success has been the unstated, but de facto, purpose of their schooling experience. And while school mission statements often reveal a goal of preparing students for a mix of lifelong success, citizenship, college, and careers, the reality is that addressing content standards and test preparation continues to dominate countless schools’s operations and focus.

In 2014, an annual end-of-year kindergarten show in New York was canceled so students could focus on college-and-career readiness. Test-prep rallies have become increasingly commonplace, especially at the elementary level. And according to a 2015 Council of the Great City Schools study, eighth-graders spend an average of 25.3 hours a year taking standardized tests. In Kentucky, where I teach, high schools are under pressure to produce students who are ready for college, defined as simply reaching benchmark scores in reading, English, and math on the ACT.

Talking with my students about ethics and gauging their response served as a wakeup call for me to consider my own role as an educator and just how low character development, ethics, and helping students develop a moral identity have fallen with regard to debate over what schools should teach. The founders of this country, Jessica Lahey wrote in The Atlantic, would “likely be horrified by the loss of this goal, as they all cite character education as the way to create an educated and virtuous citizenry.” According to Gallup polling, Lahey added, 90 percent of adults support the teaching in public schools of honesty, acceptance of others, and moral courage, among other character traits. What adults hope occurs in schools, however, is in sharp contrast to observations provided by teens themselves.

The 2012 Josephson Report Card on the Ethics of American Youth reveals a pressing need to integrate elements of character education into the country’s public-school curriculums. According to the study, 57 percent of teens stated that successful people do what they have to do to win, even if it involves cheating. Twenty-four percent believe it is okay to threaten or hit someone when angry. Thirty-one percent believe physical violence is a big problem in their schools. Fifty-two percent reported cheating at least once on an exam. Forty-nine percent of students reported being bullied or harassed in a manner that seriously upset them.

In the recently released Unselfie: Why Empathetic Kids Succeed in Our All-About-Me World, Michelle Borba claims narcissism is on the rise, especially in the Western world, as more teens concur with the statement: “I am an extraordinary person.” If empathy is crucial to developing a moral identity, then this trend should be troubling to parents and educators who hope that students foster the ability to see the world through others’s eyes.

My own observations support the data. I’m frequently unnerved by the behaviors I see in classrooms and hallways every day, from physical and verbal bullying, to stereotyping, to students leaving trash strewn all over the outdoor cafeteria courtyard.

“Teaching character education in schools is actually unavoidable … [E]verything the school chooses to do or not do in terms of curriculum choices” influences the culture of a school and the character of its students, Steve Ellenwood, the director of Boston University’s Center for Character and Social Responsibility (CCSR), wrote in an email. His words resonated with me. During my 12 years in education, I can’t recall a single meeting in which the discussion of student character and ethics was elevated to anything close to the level of importance of academics within school curricula.

Groups like the CCSR and the Josephson Institute of Ethics’ Character Counts! initiative strive to enhance existing school programs and curricula to address these issues, proof that efforts do exist to transform schools into places where character education is elevated within traditional curricula. But Ellenwood laments that many educators “blithely accept that schools must be value-neutral,” adding that there is legal precedent for teaching about religions (and not imposing any set of beliefs), character, and ethics. And divisive national politics have left many educators with difficult choices about addressing certain issues, especially those who teach immigrant students who are actively afraid of their fates if Donald Trump wins the election.

A reluctance to teach about religions and value systems is coinciding with a steady decline of teen involvement in formal religious activity over the past 50 years, according to research led by San Diego State Professor Jean Twenge. And while attending church is only one way young people may begin to establish a moral identity, schools don’t seem to be picking up the slack. There’s undoubtedly a fear about what specific ethical beliefs and character traits schools might teach, but one answer might be to expose students to tough issues in the context of academic work—not imposing values, but simply exploring them.

At a recent convening of 15 teacher-leaders from around the country at the Center for Teaching Quality in Carrboro, North Carolina, I spoke to some colleagues about the balance between teaching academic content and striving to develop students’ moral identities. Leticia Skae-Jackson, an English teacher in Nashville, Tennessee, and Nick Tutolo, a math teacher in Pittsburgh, both commented that many teachers are overwhelmed by the pressure and time demands in covering academic standards. Focusing on character and ethics, they said, is seen as an additional demand.

Nonetheless, Tutolo engages his math students at the beginning of the school year by focusing on questions of what it means to be a conscientious person and citizen while also considering how his class could address community needs. His seventh-grade class focused on the issue of food deserts in Pittsburgh and began a campaign to build hydroponic window farms. While learning about ratios and scaling—skills outlined in the Common Core math standards—students began working to design and distribute the contraptions to residents in need, a project that will continue this fall as Tutolo “loops” up to teach eighth grade.

William Anderson, a high-school teacher in Denver, takes a similar approach to Tutolo, but told me that “most teachers haven’t been trained to design instruction that blends academic content with an exploration of character and ethics.” He emphasized that schools should promote this approach to develop well-rounded students. Addressing academic skills and challenging students to consider ethics and character should not, he argued, be mutually exclusive.

When I reflect upon my own education, two classes stand out with regard to finding the balance between imparting academic skills and developing my own moral identity. My high-school biology teacher Phil Browne challenged us to think about the consequences of our consumer choices and individual actions as they related to ecosystems and the environment in a way that challenged us to think about ourselves as ethical actors.

A couple years later, I signed up for a freshman seminar in college titled “Education and Social Inequality” at Middlebury College in Vermont. I remember being moved by Jonathan Kozol’s Savage Inequalities and his moral outrage at dilapidated, underfunded, and understaffed schools in impoverished areas; early on in the course, I struggled to articulate my thoughts during essay assignments. My professor, Peggy Nelson, would sit quietly during seminars, watching us squirm in our seats while we grappled with big ideas such as personal responsibility, systemic injustice, and racism.

Entering my 13th year in the classroom this fall, I hope to continue striving to capture the dynamic that Browne, Nelson, Tutolo, Skae-Jackson, Anderson, and other skilled educators have achieved by blending academic instruction with the essential charge of developing students as people. It’s time for critical reflection about values our schools transmit to children by omission in our curriculum of the essential human challenges of character development, morality, and ethics. Far too often, “we’re sacrificing the humanity of students for potential academic and intellectual gain,” Anderson said.

By Paul Barnwell and originally published in The Atlantic on July 25, 2016 and can be seen here.

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