A recent New York Times ROOM for DEBATE discussed Does Empathy Guide or Hinder Moral Action? The anti-empathy debater defined it as “the capacity to experience the feeling of others, and particularly others’ suffering.” He believes our culture confuses empathy with compassion, and that empathy is a hindrance to making wise and moral decisions.

Family law clients often are seeking an empathic attorney. Yet I agree with the anti-empathy debater. In fact, on more than one occasion I have been told I am one of the least empathic folks the speaker knows. Every bit of legal training and experience has taught me the dangers of taking on my clients’ emotions. While I used to see this “anti-empathy” accusation as a sign of a moral flaw, I now tend to see it as an unintended compliment.

Law school teaches budding attorneys to be dispassionate–hence anti-empathetic–in myriad ways. We are drilled to “look at both sides of this issue” and “to learn to disagree without being disagreeable.” Family court litigants are often, for good reason, upset and highly emotional. Having compassion for their situation is an absolute requirement for being an effective family law attorney. Taking on their emotional state is counterproductive and dangerous as it interferes with the professional detachment necessary to provide proper legal advice.

A most obvious example is attending a hearing in which a client is very upset about the matter at issue. Addressing the court while mirroring the client’s emotional state will not only be counterproductive–the court is unlikely to respond to highly charged, ill reasoned argument–it could possibly land the attorney in jail for contempt of court.

Further, law school and the practice of law require an attorney to understand and consider both sides’ position. With some exceptions, family law attorneys generally do not get to choose which party to represent: they represent the side willing to hire them. I have to have compassion for both the adulterous spouse and the cheated-upon spouse, the abusive spouse (or parent) and the abused spouse, the husband and the wife, the mother and the father. Empathy for an abusive or adulterous spouse is distasteful and dangerous. Compassion for their situation is all that can reasonably be asked of an attorney.

Yet, even if one is representing the abused or cheated-upon spouse, one must still have some compassion for the opposing party. Understanding that party’s position and needs is key to crafting a mutually agreeable resolution–and an attorney who cannot settle the vast majority of his or her cases is doing his or her clients a disservice. For those cases that do not settle, understanding the other party’s position is a vital first step to countering that position in a contested hearing.

Further, even empathy for an “innocent” spouse or parent is dangerous. At some point one will likely need to counsel that party to compromise on some issues to achieve a beneficial result. Any attorney who mirrors that client’s emotions will be unable to give that client sound advice: how do you counsel such parties to compromise with someone they, and now the “empathetic” attorney, perceive as evil?

Taking on one’s clients’ emotions is dangerous. It clouds judgment, hinders settlement, and leads to poor strategic decision making. An empathetic family law attorney is a bad family law attorney.

There’s an interesting, and quite disturbing, article in the April 14, 2015 New York Times regarding the upcoming trial of Henry Rayhons, a now-former Iowa State Representative who is “charged with third-degree felony sexual abuse, accused of having sex with his wife in a nursing home on May 23, 2014, eight days after staff members there told him they believed she was mentally unable to agree to sex.” He resigned from state office after his arrest.

Mrs. Rayhons was 78 years old at the time of the alleged incident and was suffering from severe Alzheimer’s. She died in August 2014. Shortly prior to the incident there was a care plan meeting with the nursing home staff and Mrs. Rayhons’ family. At that meeting Mr. Rayhons was informed by staff members that they believed his wife was mentally unable to agree to sex. Mr. Rayhons, now age 78, allegedly had sexual relations with his wife eight days later. The news story suggests that his wife had minimal cognitive ability, still enjoyed going to church, and was generally happy to see her husband.

As the Times article succinctly notes, “The case pivots on longstanding medical and ethical concerns that will become only more pressing as the population ages and rates of dementia rise. How can anyone determine whether a person with dementia can say yes to sex? Who has the right to decide?”

Despite the serious due process concerns over recent “Yes Means Yes” sexual harassment policies on college campuses, I understand why such policies are deemed necessary. For folks who have just started dating, requiring affirmative consent prior to each episode of sexual activity is a useful method of preventing unwanted sexual contact. However, for folks in an established intimate relationship, it is unclear that such every-time affirmative consent should be required. Spousal rape was not even a crime in much of the United States twenty years ago because it was deemed that spouses did not require consent for sex. While unwanted sexual contact by a spouse should be a crime, why should affirmative consent be required between spouses? Marriage is the textbook “intimate relationship”; sexual activity between spouses should be presumed.

It’s possible–I’d grant even likely–that Mr. Rayhons’ decision to have sex with his wife was not based upon a desire for mutually pleasurable intimate contact. However there is no indication that Ms. Rayhons did not consent and I am unclear how nursing home staff has authority to decide whether one of their residents is incapable of consenting to sexual relations with his or her spouse. Before the state indicts someone for having sexual relations with an Alzheimer’-suffering spouse, I would want to see some evidence that the spouse actually withdrew consent or have some prior judicial or government-administrative determination that this spouse lacked the ability to consent.

Allowing medical staff to determine that a patient lacks capacity to consent to sexual activity with his or her spouse patronizes both spouses. I wonder how much of this case is due to squeamishness over old people–especially old people with seriously diminished mental capacity–engaging in sexual activities. It strikes me as quite dangerous to allow medical staff determinations to criminalize what would otherwise be normal marital conduct.

One possible solution is to enable probate courts to determine when a mentally diminished spouse no longer can consent to sex.  I am certain that this is a responsibility probate judges would prefer to avoid.  However allowing hospital staff to make decisions about intimate life with potential criminal consequences is very disturbing.

To the surprise of no one who has been paying attention, the June 26, 2013 United States Supreme Court opinions in the cases of United States v. Windsor, 133 S.Ct. 2675 (2013), and Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), strengthened the rights of homosexuals to marry, while avoiding the issue of whether the Equal Protection Clause of the United States Constitution mandated every state offer homosexuals the right to marry.  Both cases presented procedural hurdles involving standing–the ability of litigants to pursue a claim–with a majority of the Supreme Court using standing to avoid the substantive issue in Hollingsworth but finding sufficient standing to address the substantive issue in Windsor.

The key to predicting these holdings was understanding Justice Kennedy’s sympathy to constitutional protections for homosexual rights.  Kennedy is considered the “swing” vote on most 5-4 cases, though he typically sides with the conservative position–as he has already done this week on one voting rights case and two employment discrimination cases.  However he has been the author of the two previous Supreme Court opinions giving protection to homosexual rights: Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003).  Thus five current members of the Supreme Court favor protection of homosexual rights.

The substantive issue in Windsor was whether Section 3 of the Defense of Marriage Act (DOMA), which forbids the United States government from recognizing duly consummated homosexual marriages, violates equal protection and is therefore unconstitutional.  Ms. Windsor entered a homosexual marriage in Canada and resided with her wife in New York.  New York later passed a law recognizing homosexual marriages performed elsewhere (New York recently authorized the licensing and performing of homosexual marriages within that state).  Because, under DOMA, the United States refused to recognize her marriage even though New York State did, when Windsor’s wife died she was required to pay $363,053 in estate taxes.  She paid these taxes and sought a refund. The Internal Revenue Service denied the refund request, concluding that under DOMA Windsor was not a “surviving spouse.”  Windsor commenced her refund suit in Federal District Court, contending that DOMA violates the Fifth Amendment guarantee of equal protection.

After Ms. Windsor prevailed in District Court, the Obama administration refused to defend the constitutionality of DOMA but also refused to refund Ms. Windsor these funds until there was a definitive court ruling on the constitutionality of Section 3.  The Bipartisan Legal Advisory Group (BLAG) of the House of Representatives then intervened in the litigation to defend Section 3’s constitutionality.  BLAG’s zealous advocacy in support of Section 3, along with the myriad other cases winding their way through the federal courts challenging  that section, convinced a majority of the Supreme Court to address the constitutional issue.  The three justices who would have denied standing to BLAG believed that the Obama administration’s acknowledgment that Section 3 of DOMA was unconstitutional and its refusal to defend rendered the matter nonjusticiable.

Kennedy, who authored the majority opinion in Windsor, started by noting that the federal government had traditionally deferred to the states to individually define marriage.  Kennedy then found the federal government’s decision to interfere with this state right as it involved homosexual marriage to be an unwarranted intrusion that left married homosexuals second class citizens bereft of the protection of over 1,000 federal statutes related to marriage.   His opinion concludes:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

As Linda Greenhouse points out in her excellent New York Times analysis of Kennedy’s opinion:

Justice Kennedy’s majority opinion in the DOMA case mingles several strands of constitutional analysis: a little federalism (the states’ traditional role in defining marriage), a little equal protection (DOMA insists that some state-sanctioned marriages are unequal to others), a little substantive due process (the statute withholds respect, “personhood and dignity” from married same-sex couples).

Of the four dissenters (Robert, Scalia, Thomas and Alito), all found Section 3 to be constitutional and all but Alito found that BLAG lacked standing to defend the action.  Both Scalia’s and Alito’s dissent describe applying equal protection to homosexual marriage as a policy choice favoring [quoting  Alito’s dissent] “the ‘consent based’ vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons” over “the ‘traditional’ or ‘conjugal’ view, [that] sees marriage as an intrinsically opposite-sex institution.”

This is the general conservative critique of homosexual marriage and I find the “traditional” or “conjugal” view to be incompatible with modern social norms.  If marriage is defined primarily to produce offspring does this mean women are primarily human breed sows?  The sexism of the Abrahamic-era Middle-Eastern culture is one I suspect even “traditional” contemporary American women would find intolerable [any traditionalists seeking to reinstate polygamy or handmaidens?].

The Hollingsworth case sought to overturn Proposition 8, which modified the California Constitution so as to prohibit same-sex marriage.  Hollingsworth challenged the constitutionality of Proposition 8 in federal court under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, naming as defendants California’s Governor and other state and local officials responsible for enforcing California’s marriage laws. The officials refused to defend the law, so the District Court allowed petitioners—the initiative’s official proponents—to intervene to defend it. After a bench trial, the court declared Proposition 8 unconstitutional and enjoined the public officials named as defendants from enforcing the law. Those officials elected not to appeal, but petitioners did. The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defend Proposition 8’s constitutionality. On the merits, the court affirmed the District Court’s order.

In a 5-4 decision that cut across the usual ideological lines, the Supreme Court found the initiative’s official proponents lacked standing to appeal.  This decision causes jurisprudential problems for states that have the initiative [the right of state citizens to petition to change or adopt laws directly via election rather than through the legislative process].  Typically initiatives are pursued because the legislature refuses to pass laws desired by a majority of the voting population.  If the government then refuses to defend the constitutionality of a initiative-created legislation, and the initiative’s sponsors lack standing to defend the statute, the legislature is empowered to defeat such legislation merely by refusing to defend it.

Roberts’ majority opinion dismissing the appeal due to lack of standing was joined by three liberal–and presumably pro gay marriage justices–Ginsburg, Breyer, and Kagan, and one conservative–and avowedly anti gay marriage justice–Scalia.  Kennedy’s dissent, which would have found the initiative’s proponents had standing, was joined by one liberal justice, Sotomayor, and two conservative justices, Thomas and Alito.

In these two cases, only Kennedy, Sotomayor and Alito found standing in both and only Roberts and Scalia denied standing in both.  Since neither opinion in Hollingsworth addressed the merits of the claim that denying homosexuals the right to marry violated equal protection, the case offers no guidance on how the court would have ruled on the merits.  However three members of the court’s liberal wing preferred to defer deciding the underlying issue while Kennedy would have preferred to address it.

It is unclear why Ginsburg, Breyer, and Kagan preferred to defer a decision on this issue until a later date, especially when, based on his analysis in Windsor, Kennedy would have likely providing the decisive fifth vote to find that denying homosexuals the right to marry in any state was a violation of equal protection and due process.

Ginsburg, whose early career was instrumental in establishing a number of United States Supreme Court rulings reversing gender discrimination on equal protection grounds, is outspoken in her belief that Roe v. Wade410 U.S. 113 (1973), went “too far, too fast” in establishing a constitutional right to abortion and that it would have been better had the legislative process been allowed to lead to an expansion of abortion rights.  Perhaps she (and Bryer and Kagan) had similar misgivings in this case and, given the recent wave of state legislatures and voters approving gay marriage, she (they?) preferred to allow the legislative process to continue before issuing a definitive ruling on the equal protection argument.

Meanwhile, in denying BLAG standing, the Supreme Court affirms the District Court’s ruling that Proposition 8 violated equal protection and thus homosexuals will now have the right to marry in California.

There will undoubtably be future challenges addressing the marital rights of homosexuals.  Left unaddressed in Windsor is whether Section 2 of DOMA, which authorizes states to deny marriage rights to homosexuals who have legally contracted marriages in sister states, is a violation of the full faith and credit clause.  This issue has already been litigated in the lower courts and will likely be resolved with finality by the Supreme Court within a few years.  Given Windsor, I suspect that provision of DOMA will also be found unconstitutional.  Eventually the Supreme Court may address the substantive issues raised in Hollingsworth.  However yesterday’s two decisions greatly expand the rights of homosexual marriage.

Between my work as a volunteer attorney mentor, being asked by a Philippine attorney working on a book about legal career paths to describe mine, and being asked by South Carolina Lawyer’s Weekly “what do you tell young people who are considering a career in law?,” I have spent significant time the past few weeks thinking about the future of my profession.  Thus an article in last Thursday’s New York Times, Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut, piqued my interest.  This story notes:

 As of this month, there were 30,000 applicants to law schools for the fall, a 20 percent decrease from the same time last year and a 38 percent decline from 2010, according to the Law School Admission Council. Of some 200 law schools nationwide, only 4 have seen increases in applications this year. In 2004 there were 100,000 applicants to law schools; this year there are likely to be 54,000.

And,

 “We are going through a revolution in law with a time bomb on our admissions books,” said William D. Henderson, a professor of law at Indiana University, who has written extensively on the issue. “Thirty years ago if you were looking to get on the escalator to upward mobility, you went to business or law school. Today, the law school escalator is broken.”

Responding to the new environment, schools are planning cutbacks and accepting students they would not have admitted before.

A few schools, like the Vermont Law School, have started layoffs and buyouts of staff. Others, like at the University of Illinois, have offered across-the-board tuition discounts to keep up enrollments. Brian Leiter of the University of Chicago Law School, who runs a blog on the topic, said he expected as many as 10 schools to close over the coming decade, and half to three-quarters of all schools to reduce class size, faculty and staff.

After the normal dropout of some applicants, the number of those matriculating in the fall will be about 38,000, the lowest since 1977, when there were two dozen fewer law schools, according to Brian Z. Tamanaha of Washington University Law School, the author of “Failing Law Schools.”

And,

 In recent years there has also been publicity about the debt load and declining job prospects for law graduates, especially of schools that do not generally provide employees to elite firms in major cities. Last spring, the American Bar Association released a study showing that within nine months of graduation in 2011, only 55 percent of those who finished law school found full-time jobs that required passage of the bar exam.

“Students are doing the math,” said Michelle J. Anderson, dean of the City University of New York School of Law. “Most law schools are too expensive, the debt coming out is too high and the prospect of attaining a six-figure-income job is limited.”

Mr. Tamanaha of Washington University said the rise in tuition and debt was central to the decrease in applications. In 2001, he said, the average tuition for private law school was $23,000; in 2012 it was $40,500 (for public law schools the figures were $8,500 and $23,600). He said that 90 percent of law students finance their education by taking on debt. And among private law school graduates, the average debt in 2001 was $70,000; in 2011 it was $125,000.

Yet, as the article points out and as I have written before, the issue may not be that we have too many lawyers, but that there is a market failure in matching lawyers with potential clients:

“We have a significant mismatch between demand and supply,” said Gillian K. Hadfield, professor of law and economics at the University of Southern California. “It’s not a problem of producing too many lawyers. Actually, we have an exploding demand for both ordinary folk lawyers and big corporate ones.”

That same New York Times article notes that most professions are growing:

The drop in law school applications is unlike what is happening in almost any other graduate or professional training, except perhaps to veterinarians. Medical school applications have been rising steadily for the past decade.

For those who dispute that family law is a growth profession and that part of the legal profession’s problem is a mismatch between supply and demand , I would note that just last week South Carolina added six new at-large family court judges.

To the extent our profession is one in decline, the failure may be fairly laid at my generation and the generation ahead of me.  The professions—all professions, not merely the law—are a calling and that they combine aspects of a business (i.e., a method of earning one’s livelihood) with aspects of a craft guild (i.e., they have a code of what they are trying to accomplish and rules that operate to advance the goals of the profession, often to the short-term detriment of an individual professional’s economic self-interest).  The law is a profession in which its practitioners help others pursue justice.  The task of each generation of professionals is not only to pursue one’s personal goals within the profession but to train the next generation of its members and to improve its institutions so that the goals are more widely and easily obtained.  It is part of my professional obligation to improve the operation of family law and to help train the next generation of family law attorneys.

The generation just ahead of me (the generation now approaching retirement) has largely been an abysmal steward of our profession, though not locally and not within my particular field of family law within South Carolina.  The past twenty-five years has seen our profession increasing turn young associates from young members of a craft guild who are to be nurtured into partnership into a resource to be exploited to increase senior partner’s incomes.  Too many of our best minds go into “big law” where they work to advance their clients’ interests often to the detriment of the institutional profession.  I assume law students and new law school graduates who pursue big law realize the compromises they make when the pursue that career path so it’s hard to feel sad for them—but the mentality that “big law” should be the goal of top graduates (a career path I was encouraged to pursue in law school) is damaging to our profession.

I deliberately avoided Ivy League law school because I did not see myself cut out for a career in big law. However with law school tuition up 300% (even after accounting for inflation) from when I attended a generation ago, it is harder for young lawyers to pursue the career path I chose, which offered less money but greater autonomy and career satisfaction and better work/life balance.

For the past twenty years I have seen my seniors in the profession lecture my generation on the decline of professionalism within the law.  For twenty years I have wanted to scream back at them: “how is this decline the responsibility of those new to the profession rather than your responsibility and, since it’s your responsibility, why aren’t you doing something to fix it?”  Now, at age 50, I am part of the more senior bar membership.  I regularly see articles such as this one in the Times highlighting the decline of my chosen profession.  I regularly observe younger members of the bar struggling to develop the training and client base to make law a satisfying career.

We all could do a better job matching retail level clients with newly licensed attorneys–South Carolina should immediately implement a reduced rate referral service open to all attorneys to supplement the one that is only open to attorneys with three or more years of practice.  And we all need to work harder helping new attorneys gain a foothold into practice.

I was lucky to begin my practice in an era of low law school tuition with numerous attorneys willing to nurture the few young lawyers who chose, or were forced, to open their own practice if they wanted to work within the profession.  The law has treated me better than I had any hope or right to expect and I consider my career choice to have been fortuitous.   There are many newly licensed attorney who justly feel differently about our profession and law school admissions are dropping for good reason.

If attorneys my age and older do not do a better job nurturing these attorneys we will be justly blamed for the decline of our noble profession.

Recently South Carolina’s Office of Disciplinary Counsel (ODC) has taken action against attorneys for their activities outside the context of actual cases if these acts are “conduct that is prejudicial to the administration of justice.”  Specifically, they are trying to discipline an attorney for vile blogging.

Also recently, a New York Times article discussing United States Supreme Court Justice Sonia Sotomayor’s recent autobiography notes:

In her book, she confesses that she does not always observe the letter of the law. “I’m a New Yorker,” she wrote, “and I jaywalk with the best of them.”

I have yet to encounter an attorney who always drives at or under the speed limit–myself included.  Sotomayor is not the only attorney to habitually jaywalk.  Practically every lawyer I know habitually violates laws they consider stupid or overbroad.

I note that Canon 2(a) of Code of Conduct for United States Judges (which is the code of conduct Justice Sotomayor must follow) reads “A judge should respect and comply with the law.” The comment to this rule further reads:

An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.

Some lawyers I know smoke marijuana. Others prefer to be paid in cash.  I suspect there is a line between laws so inconsequential or picayune that their habitual violation isn’t “conduct that is prejudicial to the administration of justice” and laws whose violation does meet that standard.  I might argue that driving 80 mph in a 70 zone or jaywalking is not such conduct; I wouldn’t consider claiming that murder isn’t.  Where marijuana smoking or failing to report income to the IRS fall on that continuum isn’t an opinion I intend to render.

But, frankly, it’s not any attorney’s right to decide for him or herself which laws they can violate without engaging in “conduct that is prejudicial to the administration of justice.”  Either Rule 8.4(e) of the South Carolina Rules of Professional Conduct, that makes such conduct a violation of the rules of professional conduct, is overbroad or any violation of criminal law is a violation of that rule of conduct.

If a United States Supreme Court Justice can habitually jaywalk and publicly flaunt this misbehavior without sanction, what violations of criminal law can I and my fellow attorneys get away with before we are held to have violated Rule 8.4(e)?

The amount and quality of the journalism coming from the New York Times that touches on issues related to family law is–literally–remarkable.  I could easily generate 100 blogs a year highlighting Times stories that implicate family law.  Often this journalism identifies first-wave issues that are likely to go national, such as a recent article on laws allowing children to have more than two legal parents.  Then there’s the noteworthy journalism on parenting issues which identify recurrent but unrecognized assumptions undergirding many custody cases.  Even if one despises the avowedly liberal tilt to the Times’ editorial coverage, and the more subtle liberal tilt in the Times’ story selection, this newspaper should be required reading for any family law attorney interested in the intellectual aspects of our practice.

Today’s [July 29, 2012] New York Times contains a feature story and a book review that could each sustain interesting individual blogs.  The feature story, Which Mother for Isabella? Civil Union Ends in an Abduction and Questions, describes a mother, Lisa A. Miller, who allowed her “civil union” partner, Janet Jenkins, to adopt her biological daughter, Isabella.  When Miller renounced lesbianism and because a conservative Christian she began excluding Jenkins from Isabella’s life.  Frequent contempt citations failed to remedy this behavior and ultimately a Vermont judge changed custody to Jenkins.  At that point, Miller’s religious colleagues helped her and Isabella cross the border to Canada and eventually travel to Nicaragua.  Aiding Miller in her fugitive status were Mennonites, including a Mennonite pastor who is now being prosecuted in the United States for abetting the kidnapping.

Almost three years after Miller absconded, she and Isabella remain in Nicaragua, her fugitive status encouraged and abetted by religious conservatives. The news story notes how many of Miller’s supporters contend she “has been persecuted because of her religion.”  Miller has “been helped by evangelical groups who endorse her decision to flee rather than to expose Isabella to the ‘homosexual lifestyle’ of her other legal mother.”  Her legal case was taken up by Liberty Counsel, which is affiliated with the Liberty Law School, which was founded by the Rev. Jerry Falwell. Her lawyers, led by the dean of the law school, invoked the federal Defense of Marriage Act to argue that Jenkins was not a parent.

Given the increasing prevalence of both open homosexuals and Conservative Christians in the United States, these type of custody disputes may become common.  The Vermont family court treated this case as would any family court in which one parent repeatedly undermined the other parent’s visitation and violated court orders.  What makes this case noteworthy is one parent’s homosexuality and the other parent’s fugitive status.  Apparently there is a subset of Conservative Christianity that believes homosexual adoptions should be treated as void, that abduction to prevent homosexuals from visiting their children is acceptable, and that to challenge such beliefs is to engage in religious persecution.  Shocking, and I wonder how many state legislators or family court judges might be sympathetic to these viewpoints.

Today’s Times also contains a book review of “Teach Your Children Well,” by Madeline Levine.  The reviewer, Judith Warner, describes Levine’s book as “a cri de coeur from a clinician on the front lines of the battle between our better natures — parents’ deep and true love and concern for their kids — and our culture’s worst competitive and materialistic influences…”  Her book criticizes schools that worship at the altar of high achievement but do everything they can to undermine children’s growth and well-being and parents who run themselves ragged with work and hyper-parenting, presenting an “eviscerated vision of the successful life” that their children are then programmed to imitate.  Levine’s remedies are teaching empathy; encouraging the development of an authentic self; and making time for dreaming, creating and unstructured outdoor play.

Levine argues, that parents learn new ways to express their love and concern, trading their fears of failure for faith in their children’s innate strengths, and prioritizing the joys and challenges of life in the present over anxious visions of an uncertain future. “There comes a point in parenting,” she writes, “where we must decide whether to maintain the status quo or, armed with new information, choose a different course. There is little question that our children are living in a world that is not simply oblivious to their needs, but is actually damaging them.”

My own experience parenting a teenager is that there is a continuing tension between pushing children to “achieve” and allowing them to determine their own level of effort and then allowing them to suffer the consequences or reap the benefits.  There is further tension between a too narrow definition of success that treats money and achievement as the primary goals of education and a vaguer (or broader) version of success that treats career and money as relatively unimportant.

Not only does the proper balance vary by child but it also changes as the child ages and matures.  Further even the child often doesn’t know if a proper balance has been struck.  Our college sophomore daughter was sufficiently successful in high school to matriculate at her first choice of college but she believes we didn’t push her sufficiently.  Yet she would become withdrawn and distraught if pushed too hard in middle and high school.  The correct balance may be impossible to determine except in hindsight.

Within the family court culture I observe, proper parenting is to push the child as hard as possible without having the child break down.  Custody is often challenged, and sometimes changed, when a teenager “underachieves.”  Custody is also challenged, and more frequently changed, when that same teenager breaks down from the pressure and turns to substance abuse, delinquency, or self-destructive behavior.  Likening teenagers to sports cars, our family court culture tells parents to drive as hard and fast as possible but make sure one doesn’t damage the engine.  A culture that had a broader understanding of success and achievement and that was less goal oriented in guiding teenagers might lead to better results in young adulthood.

My family spent last evening with South Carolina adoption guru James Fletcher Thompson.  James regaled us with stories of the latest trends in assisted reproduction technology.  Evidently even South Carolina is starting to allow not just gay parents to adopt but is even allowing same sex couple adoption (meaning some children have two legal mothers or two legal fathers).  Couples are raising children who have been gestated by a third party or in which only one partner has a biological connection with a child who was conceived through a donor egg or sperm.  Our culture is slowly moving from one in which being a legal parent almost always meant being the biological parent of a child conceived through sexual intercourse to one in which being a parent is increasingly based upon the establishment of a legal relationship in which one agrees to assume responsibility for raising a child in return for which the state grants one legal authority over the child.

This makes the timing of today’s New York Times piece, “Measure Opens Door to Three Parents, or Four,” particularly fascinating.  Evidently courts in a few states have authorized adoptions allowing a child to have three or even four parents.  Delaware and the District of Columbia have passed laws that allow for third “de facto parents,” who have the same rights and responsibilities toward their children as adoptive parents.  California is considering a similar measure.

The article focuses upon two examples in which a child has more than two caregivers assuming a role as parents.  These families demonstrate the type of situations in which caregivers may wish for a child to have more than two legal parents.  One example was of two married homosexual couples, one gay and one lesbian, raising two daughters together.  These children are biologically related to one of the gay men but the lesbians are these girls’ legal parents.  The other example was a child who was adopted by her stepfather without terminating the parental rights of her biological father.

The desire of these parents to allow a legally-recognized parent-child relationship with more than two people has both emotional and practical bases.  Folks willing to commit to parenting a child–as all four of the “parents” in the two homosexual couples appear to have done–naturally want the law to recognize that relationship and give them the rights that stem from being a legal parent.  These parents further argue that allowing a child to have more than two legal parents reduces the risk that the child will end up in foster care if a parent dies or becomes unable to care for the child.  As the biological father of the girls explains, “This would be the final piece, so we don’t have to worry if something happens to the legal parents or if I am out with the kids and something happens.  Legally, they could just take my kids and I couldn’t do anything about it.”

The article also interviews the child, now age 20, who was adopted by her stepfather without her biological father’s parental rights being terminated.  She tells The Times, “If it were a choice between dropping my dad to be replaced by my stepdad, I would not have been open to it, but with a joint adoption you don’t have to battle about who is going to be Mom and who is going to be Dad. You can have a situation where everyone is happy and part of the family.”

One can easily imagine social conservatives going apoplectic, and perhaps apocalyptic, at the idea of children having more than two legal parents.  I have long supported same sex marriage and same sex couple adoption, yet the idea of children having more than two legal parents gives me the same sort of discomfort that the concept of legalized polygamy gives me.  The parade of horribles that social conservatives predict(ed) from allowing gay marriage or same sex adoption struck me as merely hysterical: they didn’t expand the concept of marriage or adoptive parenting so much as expand the number of potential beneficiaries of marriage or adoption.  But just as polygamy adds more inter-personal complications to the marital relationship, allowing children to have more than two parents adds these complications to the parent-child relationship.  Contested custody and visitation battles are plenty divisive when a child’s time and caretaking has to be divided between two people.  Contested custody litigation involving three, four or more parents is geometrically more complex.

Yet, as the parents and the adult child interviewed in this article demonstrate, a child’s life can sometimes be improved by having more than two caregivers willing to take on the commitment of parenting.  With our legal culture increasingly determining that mere adherence to tradition is no reason to prevent folks from redefining relationships to suit their purposes, allowing children to sometimes have more than two parents has some appeal.  Once this trend starts it’s hard to see what might stop it.  I suspect we are entering an era when some children will indeed have more than two legal parents.

A recent scientific breakthrough allows the paternity of an unborn child to be determined through a blood test of the mother as early as the eighth or ninth week of pregnancy.  This prompted Shari Motro, a law professor at the University of Richmond, to write an op-ed piece for the New York Times suggesting the time has come for “pregnancy support alimony” (the Times’ term, not Professor Motro’s).  She suggests that the fathers of these not-yet-born children “be asked to chip in for medical bills, birthing classes and maternity clothes, to help to cover the loss of income that often comes with pregnancy, or to contribute to the cost of an abortion.”

I suspect one’s reaction to this suggestion is strongly correlated with one’s gender.  I can see female readers thinking, “about damn time!,” with my male readers thinking, “Hell no!”  I can see the logic in both genders’ viewpoints.

Obviously, if the law can require fathers to contribute to the support of their out-of-wedlock children, there’s no logical reason they shouldn’t be required to contribute to the support of such children while they’re being gestated.  Professor Motro’s list of costs to be included in such support are all associated with pregnancy, which buttresses her argument that both parents should be required to equitably contribute to these costs.  The major reason such costs haven’t been part of child support obligations isn’t jurisprudential but evidentiary: there was previously no safe, minimally-evasive method of determining paternity prior to birth.  With such evidence now obtainable through a blood test of the mother, this problem is overcome.

However allowing such support further highlights the unreciprocal rights of each gender to determine the course of pregnancy.  The law repeatedly tells fathers that childbearing, and the consequent support obligations, are “one of the risks of heterosexual sex.”  However the law vests women with the full authority to decide whether to carry a pregnancy to term or terminate it.  The law could, in theory, require women to bear these children as “one of the risks of heterosexual sex.”  Largely out of a desire to not intrude upon such important decisions as to whether to bear children, and a sense that personal autonomy is a vital component of a limited government, the law doesn’t do this.

Yet when it comes time to require fathers to support children that they did not desire to have the law shows no similar restraint.  In fact the law uses its police powers more coercively to collect child support–the amount of government resources and jail space used to enforce child support orders is shocking–than for any other type of private debt.  From a fathers’ perspective, “pregnancy support alimony” is further coercion stemming from a decision over which they have no control.

I would not be surprised to see pregnancy support become part of the legal landscape over the next decade.  From an economic standpoint requiring fathers to contribute pregnancy support seems just.  However every time the law requires fathers to contribute more support for children they did not desire to bear we erode the argument that women should have the absolute right to determine the course of their pregnancies.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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