A “morality clause” in a divorce or custody order, also known in some states as a “paramour provision,” states that a parent who has children present in their home shall not allow someone with whom they are romantically involved to be in that home during certain hours, such as 9pm -6am. The rationale for this type of provision is that it is in the best interest of the children to protect them from being present while their parent has a romantic interlude with someone who is not a spouse. As you can imagine, these clauses have been implemented and continue to exist primarily in more socially and religiously conservative areas of this country; although they are waning. For example, Tennessee outlawed such clauses several years ago.
A Texas judge recently made headlines when he enforced a morality clause in a custody agreement against a mother who had been living with her lesbian partner for three years. Because same-sex marriage is not lawful in Texas, there is no legal means by which this lesbian couple can marry to “legitimize” their relationship in Texas and therefore escape the enforcement of the morality clause. Therefore, the partner, who had been consistently in the children’s lives for three years, was thrown out on 30 days notice, upon request of the mother’s ex-husband. Is this result really in the best interest of the children? Was the ex-husband being spiteful by seeking enforcement of a clause three years after this issue arose with no evidence that this living arrangement was negatively impacting the children’s lives? In that case, who is the parent better able to protect the best interests of the children? Putting aside the varying views on same-sex relationships, if the ex-husband was so interested in the morality of two unmarried people living together (whether the same or opposite sex), why did he wait three years? I’m sure the issue about who really has the children’s best interest at heart can be debated for hours.
In California, we do not have any affirmative law which allows a court to impose a morality clause on either party in custody matters. Rather, the court is always guided by what is in the children’s best interest and if one parent can show that anything – including a living arrangement – is detrimentally affecting the children, then the court may act to modify custody and/or institute orders to protect the children. Could that prohibit a parent from allowing someone with whom he or she is romantically involved to spend the night when the children are present? I assume so, if specific facts about the situation are shown to have a negative impact on the children. This is a very difficult burden to meet, which can make such actions hard to enforce where morality clauses are not common. This is very different than in Texas, for example, where it seems that if the morality clause is violated, it is enforced irrespective of how that enforcement impacts the children.
Although morality clauses or paramour provisions are uncommon in California, they still can end up in court orders. As I stated above, there could be a situation where a court makes such an order, but it is more likely that the individual parties would agree to one of these clauses. Parents need to be careful when they ask for or agree to such a provision because a restrictive provision that is drafted too broadly can impinge on a parent’s rights to make decisions about his or her own life. Putting aside the constitutionality of these provisions, a parent who is considering them would be prudent to limit how long they apply. For example, specify that the provision shall terminate when the child reaches a certain age or, when the parent has been involved in a committed relationship for a certain amount of time.
Morality provisions are fraught with enforceability issues beyond whether or not they are constitutional. The couple in Texas who cannot live together because of the morality clause and cannot marry under Texas law are victimized by a classic “Catch 22.” They are contemplating appealing the decision, so we will see what, if anything transpires from their situation.