Morality clauses are interesting to us and can also introduce a new arena for high-conflict in custody agreements. While no-fault divorces are the norm in this country, it goes without saying that many are caused by infidelity. Therein lies the conundrum, particularly when one party (or both) may have strayed during their marriage, it’s often a surprise to find the offending parties are the ones very interested in initiating “morality clauses” into custody agreements that prohibit an unmarried romantic partner from staying overnight (or some other restrictive language, up to and including prohibiting a new romantic partner from even being present during custodial periods).

On the surface, the thought is about protecting the children from a revolving door of romantic partners from being introduced to the children, only to have them disappear from their lives in short order. It goes without saying that this would be detrimental to the children’s psyche, though how much and to what extent is hard to measure. However, there are far too many loopholes in even the tightest of morality clauses. Further, they simply can’t stop the children from being introduced to new significant others in a parent’s life.

There are some recent trends in child parenting agreements/orders that really should be avoided. In fact, morality clauses should be avoided, in our opinion, due to the reality that they are quite difficult to enforce and don’t afford children the “protection” that is intended.

First, the use of a parent’s sexual behavior to restrict visitation or withhold custody, even when there is no evidence that such behavior has any effect on the child. Children have close friends. Adults have close friends. It stands to reason that these friends may come in go in any of our lives. It seems counter-intuitive that a new adult “close friend” should be restricted from introduction or noticed as a part of a parent’s life. In fact, it may introduce suspicion to the children about the new person in their parent’s life without any real understanding of why it’s necessary, which can be detrimental in its own right.

Secondly, the use of restraining orders nowadays is used to introduce the family court’s opinion regarding the child’s best interests when in reality – it’s a tool to circumvent the parent’s judgments about what’s best for their child.

In each situation, the court is able to impose its view of moral behavior with the force of law. With all of the other intrusions that divorce and custody litigation affords the family court – this one is another that is an alarming trend. Further, it has been our experience that those initiating such clauses are doing so simply to control the life of their ex-partner and are even the person who violates the clauses that they are trying to impose on the other party.

In addition to familiarizing yourself with the seemingly obvious statutes and case law that are part of the “everyday” family court arena, it’s just as important to consider those which aren’t so obvious. Many states have court cases with rulings on just such matters. Many of them prohibit the consideration of a parent’s “sexual behavior” (with obvious exceptions) as part of custody decisions.

Sexual conduct or intimate partner relationships standing alone should not be a basis by which family court (or rule of law) restricts another parent’s custodial rights. Absent serious situations, for instance, a child bearing witness to a parent’s sexual conduct or when such conduct has impaired or otherwise negatively affected that parent’s ability to parent – it should not be used to award one parent more custodial time (or the “offending” parent less custodial time).

The mere introduction of a new significant other or the fact that that person spends one or more (or all) nights at the parent’s residence alone would hardly constitute clear and present harm to a child.

While it stands to reason that we want to protect children from a “revolving door” of parental figures in their lives in order to maintain stability during rather unstable times in their lives, doing so with morality clauses in custody agreements is simply not the way to accomplish it.

We urge you to review court rulings in your state on such matters before you consider embarking on the introduction of such clauses in your custodial arrangement. If you are currently restricted by such clauses, you should do the same. As always, consult an attorney on the applicability of such morality clauses in your state/situation.