We always see something like this in an MSA every now and again:
No party shall have overnight personal guests of the opposite sex to whom they are not married or related by blood or marriage while the minor children are in the home during periods of physical custody and/or < parenting time >.
Then most of us always say that a court will never enforce it. I agree for the most part but I always have the thought that if a judge will put it in there, given the right circumstances, he will enforce it. So I did some research into case law to see if that was actually true. This thread is intended to get points of view on the case law and elicit substantive discussions about this topic. Some guys get wrapped around the axle about the STBX or ex-wife banging another guy while she has parenting time and In the future, we can just refer them to this thread.
Out of the state of Georgia:
Lastly, the father and the grandmother challenge the provision of the trial court's order that prohibits any party from having overnight guests of the opposite sex during periods of physical custody of and/or < parenting time > with T.A.S. or his sister. The order does not prohibit all contact with unmarried or unrelated companions; it is more narrowly drawn to protect the children from exposure to certain conduct by either parent, i.e., having overnight stays with unrelated members of the opposite sex. The condition is clearly intended to preclude potential sexual relations by either of the parties with unwed partners in the presence of the children, a type of limitation within the discretion of the trial court.
In this case, it appears as though the court of appeals (specifically the judge who wrote this opinion) defers to the trial court and their "discretion" to include this language. But wait, there's a dissenting opinion by another judge:
I respectfully disagree with the analysis in Division 3, which addresses the provision of the trial court's order prohibiting any party from having overnight guests of the opposite sex during periods of physical custody of and/or < parenting time > with T.A.S. or his sister. Because this prohibition is unenforceable under binding precedent of the Supreme Court of Georgia and this Court, I believe we are constrained to conclude that the trial court abused its discretion in imposing it upon the parties.
The Supreme court of Georgia basically said, in layman's terms, "Look, if a parent wants to fu*k, let them. As long as it's not being done in front of the kids, who cares!" Case law in Georgia says, you can put in your MSA or divorce decree that the other parent cannot have other members of the opposite sex sleep over but it's not worth a hill of beans if you try to have it enforced.
However, the Court of Appeals will enforce that "overnight guest" section, but only if there is an adverse affect on the kids.
In the absence of any evidence that exposure to a third party will have an adverse effect on the best interests of the children, a trial court abuses its discretion by prohibiting a parent from exercising his or her custodial rights in that person's presence. In light of this precedent, I believe we must conclude that the trial court abused its discretion in imposing the challenged < parenting time > restriction.
Out of the state of South Carolina:
Father takes issue with the following provision in the divorce decree:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all parties be, and are hereby, enjoined and restrained from having contact with a member of the opposite sex not related by blood or marriage in the presence of either child from the hours of 10:00 p.m. until 8:00 a.m. This injunction and restriction applies to any structure or open area where the children and the party will sleep in close proximity to each other.
This judge was specific! Anyhow, the court of appeals stated:
Father argues that this restriction is overly broad and unreasonable. For example, he contends that if read literally, Caitlyn would not be allowed to have any girlfriends sleep over when Father has custody of Caitlyn. We agree.
That was simply stated by the father; short and to the point. In another similar case in South Carolina, the court of appeals said:
This restriction was intended to prevent the child from visiting in the presence of [the father's] live-in girlfriend. The restriction is overly broad and unreasonable as there was no finding that the presence of [the girlfriend] would adversely affect the welfare of the child.... Even if this finding had been made, the restriction is overly broad in carrying out its intended purpose. Carried to its logical extreme, it would prevent the child from entertaining his own friends at his father's home.
Out of the State of Louisiana:
On May 19, 2000, Cheryl Harper, through counsel, filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction and Motion for Modification of < parenting time > seeking to prevent and restrict Fred Harper from exercising overnight < parenting time > with his children "while a person of the opposite sex to whom said defendant is not married resides or is present overnight in the residence or structure where the < parenting time > will occur.
This chick is crazy. She went and applied for a restraining order so the father couldn't have any women sleep over! What's even more crazy you ask? The court signed the TRO!
The trial court signed the TRO on the same day the petition was filed, enjoining Fred Harper from exercising < parenting time > with his children on an overnight basis while a person of the opposite sex to whom he was not married was present.
To make matters worse, the court GRANTED the TRO and now it's permanent!
Allowing the hearing and argument on June 6, 2000, the trial court denied Fred Harper's Motion to Dissolve the Temporary Restraining Order and his request for attorney's fees and costs. The injunction was issued restraining and prohibiting "both parties to this proceeding from exercising overnight custody and/or < parenting time > with the minor children born of their marriage while under the same roof, or in the same home with a person of the opposite sex to whom the parent in question is not related either by marriage or by blood." Further, it was ordered that the custody and < parenting time > agreement be modified to include the restriction set forth in the injunction. It is from this judgment that Fred Harper appeals.
Here is the Court of Appeals opinon:
Under the requested restriction, as noted by Fred Harper, the consequences would be absurd. He could stay in adjoining hotel rooms, with a woman in one room and he in the other, but not in his three bedroom Gulf Shores home, despite the fact that each bedroom has a separate door that locks. Further, he could not take his children with him for a weekend in Gulf Shores and also invite friends with children to join them for the weekend if the "friends" include a married couple, and, thus, an unrelated female. He could not, for that matter, bring a female nanny or babysitter with him on an overnight trip. The excessiveness of the restriction needs no further elaboration.
Accordingly, for the reasons set forth above, the judgment of the trial court issuing an injunction and ordering modification of the custody < parenting time > agreement, "prohibiting the parties from exercising overnight custody and/or < parenting time > with the minor children born of their marriage while under the same roof, or in the same home with a person of the opposite sex to whom the parent in question is not related either by marriage or by blood" and denying Fred Harper's request for attorney fees and costs is reversed. The case is remanded for the trial court to set an appropriate award for attorney fees and costs.
I have to admit, this one was a bit out there. There was nothing in the document that stated the father was harming his kids or anything even close to that. The mother just said she didn't want another woman to sleep in his house when the kids were there. For the court to approve the TRO and then make it permanent is a little ridiculous.
Out of the state of Indiana, this one is relatively the same, but with a same sex partner:
Neither parent shall allow an unrelated adult member of the opposite sex, or of the same sex if they are involved in a homosexual relationship with that parent, to spend overnight with them while a child is in their care.
That was put in the trial court order and the trial court swapped custody because the mother violated this clause. In reading it, it seems as if the judge had issues with her homosexuality but nevertheless, custody was swapped because of this violation.
The Court of Appeals opinion stated:
Had the evidence revealed that Mother flagrantly engaged in untoward sexual behavior in the boys' presence, the trial court may have been justified in finding her to be unfit and, accordingly, awarded custody to Stepmother.
We hold that imposing the standard overnight restriction without a finding of harm to or adverse effect upon the children is an abuse of the trial court's discretion. The trial court erred by a priori imposing the restriction upon Mother without the requisite finding of harm. Imposition of such restriction can be justified only when it is based upon a finding of harm to the children on a case-by-case basis. < parenting time > and custody determinations must be determined with respect to the best interests of the children, not the sexual preferences of the parents.
Applying this rule to the present case, because the record does not support a finding of harm to the children, we conclude that the trial court should not have imposed the standard overnight restriction. Accordingly, we reverse that part of the trial court's order.
In this case, the trial court enforced that section of the order. Sometimes we talk about how you have rights but you are solely responsible for protecting them. In this case, the mother lost custody because she violated the overnight clause in her order. If she never appealed, she would have lost custody permanently. By appealing, she has now set a precedent whereby even if you have this clause in your order and you violate it, it does not mean you are in contempt. It just defers to a second question and that is, "Does this behavior affect the children in a negative manner?" In this case, the answer was no and the Court of Appeals overturned the trial courts decision.
Here is my final thought. I'd be willing to bet, as seen in the two cases above, that you will find some trial courts who will enforce the "overnight guests" portion of the order. However, I was unable to find any appeals court that affirmed the ruling of the trial court. That's not to say it hasn't happened, I'm just saying that out of all of the cases I read, this clause was eradicated at the appeals court level. Essentially, what you will probably find is that it's the exception, not the rule, where the "overnight guest of the opposite sex" portion of the order is enforced.
*NOTE* - I read through a lot of cases that dealt with the "overnight of the opposite sex" thing. Most really didn't apply to my post and that's why I didn't include them. One interesting thing I noticed, out of all of the cases I read, the majority were in the South Eastern/South Central United States. Ahhh, the bible belt......
