Ask A Lawyer: Restricting Who She Allows Near The Kids

Question:

Can a clause be placed in the divorce that a parent may have no members of the opposite sex around the children until they are married?

Answer:

Placing conditions upon the physical visitation rights of either parent can be by agreement or by court decision.   While the parties could agree to such a condition, the enforceability of such a broad condition would be problematic and usually require going back to court or through mediation at some expense.  The party that does not comply no doubt will have some justification and the result being an admonition to the breaching party to abide by the agreement.  The non-compliant party may then continue to ignore the agreement, forcing more legal proceedings, or file a motion to modify the agreement asserting the justification as the basis for the modification.

A court will only impose restrictions as to whom may be present with the child if there is a danger, physical or emotional, to the child.  The legal presumption is that each parent will act in the best interest of the child unless there is evidence that the presumption is not valid in a specific case, such that courts are cautious about imposing behavior restrictions upon the parents.

Requests for court ordered restrictions are usually contested matters requiring a hearing on the issue.  Any restrictions imposed by a court are generally going to be specific as to individuals who may not be around the child.  If the child is medically or emotional fragile and the presence of any person of the opposite sex is at issue, such a situation raises numerous issues that would affect the entire custody arrangement.

The more common issue is the concern over exposure to the ex-spouse’s paramours, either due to a concern about the child being subjected to adult conduct that is not appropriate for the child to observe or hear, or a concern that the child will become attached to a paramour that may not be a long-term participant in the child’s life.  Sometimes a mutual restriction on both parents will be included in custody agreements, subject to the enforcement and modification tactics outlined above.

Seeking a court ordered prohibition against the presence of paramours will be affected by the moral and legal status of paramour relationships in a given jurisdiction and, perhaps, the views of a given judge.  Evidence as to the stability of the parent’s paramour relationships and their parenting values will be considered.  If a specific relationship is at issue, then the details and concerns with that specific paramour will be at issue and usually hotly contested.  As the paramour conduct will normally be in the privacy of the ex-spouse’s home, proving any allegations of improper conduct can be difficult.  Concerns as to an unhealthy attachment may require retaining a psychologist to evaluate the impact upon the child, at considerable expense.  After a full exploration of the issues, the court has the authority to restrict visitation in the best interest of the child.

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