Custody Agreement Morality Clauses and Their Implications

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.

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  1. I disagree. I live in Fort Worth, Texas. Yes, the bible belt. I filed a modification requesting a morality clause be entered into our decree. The situation? My ex is a pilot with Continental airlines. He is based in Phoenix Arizona and flies in to be with his son two days a week. Recently, he had started bringing his girlfriend to the house to stay the two nights with him and his son. He had also started taking the son on road trips and they stayed in the same hotel room. I tried to work it out with my ex and explained that I did not think it was a good idea for a role model to expose his son to this kind of behavior. He stated it was his right. Well, the Fort Worth court disagreed. What was their opinion? What a parent does in the presence of the child shapes the moral foundation for the rest of the child’s life. If the parent does not show caution, what will they tell the minor child when he wants to have his girlfriend spend the night at 16? Judges words to the courtroom…not mine.

    Solution: Morality Clause Inserted-No overnight visits of the opposite sex that is not related to the child by blood or marriage while the child is in the possession of either parent. Both parents are cautioned that a violation of this order can result in a contempt charge and reduction in visitation days or custody.

  2. Legislating morality from the bench in Family Court is a proverbial slippery slope.

    Some people might find the fact that you’ve gotten a divorce immoral. Would you feel the same way if a Fort Worth judge rescinded your parental rights because getting divorced sets a poor example for your children? What if a Fort Worth judge reduced your parenting time because you took your child to a fast-food joint and fed him a load of junk that offers zero nutritional value and is detrimental to his/her health? How about if you choose to live in a very dangerous neighborhood because that was the best you could afford, but the child’s risk of injury or death is much greater than it would be in a better neighborhood?

    We understand the need to set good examples for our children – the court has no business, nor does either parent, to use the threat of parental rights restrictions over simple situations that one or another might find objectionable if they offer no clear and present danger to the children’s health and well-being.

    Finally – the fact that the morality cross prohibits “overnight guests” doesn’t mean it will stop whatever “objectionable behavior” you think is happening from occurring at any other time during the day. I’m going to guess that it doesn’t define what constitutes an “overnight” which further undermines the efficacy of the clause.

    We find that level of “control” efforts to be rather objectionable. Having a meaningful relationship with another person is hardly, in and of itself, “poor behavior.”

    If at 16 the child wants to have his girlfriend stay over, the answer is “no” – because that’s the way life works. Your child gets to make that decision for himself when he is an adult and has a place of his own.