Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Bans on Live-In Lovers Must Benefit the Children In Order To Be Enforced

It’s an unfortunate fact that couples in a divorce hurl accusations of bad behavior back and forth. One often heard where there are children involved is that “since our separation the lousy so and so had her/his boyfriend/girlfriend overnight several times” while the children were there.

 

Yet, for all the invective and sermonizing that goes on during the run-up to the divorce, it is a rare couple that actually seeks a ban on overnight guests in their final decree. Perhaps it is because each party recognizes that, once single, they are as likely as their ex-mate to be tripped up by the prohibition.

 

Still, there are couples, often because of strong moral convictions, that agree to not have unrelated overnight guests of the opposite sex while their children are also in their home. And, by including it in the divorce decree, expose themselves to possible court sanctions, including reduction or loss of custody, should they violate the restriction.

 

However, as recent cases have demonstrated, even when spouses mutually agree to this provision, it doesn’t mean that the court will include it in the decree, or if included, that the court will enforce the provision should someone violate it.

 

Take the case of Vollet v. Vollet, a Cole County couple that agreed to just such a ban only to have their judge refuse to include in the final decree, saying that he never incorporates that sort of agreement in any of his cases because “neither of you should have that sort of control or have custody depending on that sort of control”. Mr. Vollet then took the case to the Missouri Court of Appeals.

 

The Appellant Court ruled in Mr. Vollett’s favor, finding the trial judge was biased. However, it didn’t reinstate the restriction on overnight guests agreed to by the couple. Instead, it sent the case back to the lower court for another judge to determine if such a ban would be “in the best interests of their children”.

 

To many of you, perhaps most, this must smack of a court overstepping its bounds. After all, if the parents view this as an appropriate boundary, what court should be able to say otherwise? But, alas, that is the way family law has been adjudicated in Missouri for a very long time.

 

In every divorce involving children, it is the judge that determines what would be in the “best interests of the children” when it comes to child custody and the parenting plan. To do that, the judge has to be provided testimony or other evidence supporting such a restriction as being beneficial to the child. This might be as simple as each parent testifying that the prohibition would set a proper moral foundation. Testimony from clergy, teachers or counselors would strengthen the argument.

 

The importance of building an evidentiary foundation was made clear to me in a recent case. I represented a divorced father seeking to enforce just such a ban mutually agreed to with the mother and incorporated into the decree. However, there was no record that any evidence had been submitted at the original trial as to why the ban would benefit his two daughters, who were now residing with the mother and a live-in boyfriend.

 

Despite the fact the daughters were quite uncomfortable with the situation, I had to advise dad that the agreement with his “ex” would likely not be enforced, unless his daughters were willing to testify in court about their unease. In the end, the father decided not put his girls through the trauma of a trial and this issue never went to court.