Can I successfully put a morality clause in a custody agreement to prevent my child from a living arrangement where my ex is living with a girlfriend? This practice is against the religious teachings in our faith.
In Utah (where I practice divorce and family law), you can include provisions in your decree to set and enforce certain moral standards.
In fact, it’s a common provision divorcing parents include in their divorce decrees. Sadly, such provisions are becoming less common as society’s acceptance of cohabiting grows, but it’s still a common issue and so “morality clauses,” as they are sometimes known, are still a common provision in divorce decrees.
If you and your spouse agree to a morality clause, the judge will almost surely accept it and permit its inclusion in your decree.
If the issue of including a morality clause in the decree were contested and left to the judge to decide, your chances of the judge including a morality clause in the decree would be slimmer, but not zero (some judges feel—for many reasons, some good, most bad—that morality clauses are a bad idea).
In crafting the terms of the morality clause take care to avoid overreaching. What do I mean? You asked whether you could include a morality clause that would prohibit your ex-husband from merely living with his girlfriend. That is the sort of clause the court would probably deny as too restrictive because if ex-husband (or ex-wife) were to cohabit with someone to who he is not married, some judges conclude that that doesn’t set a “bad enough” example to warrant barring cohabitation (I disagree, but it doesn’t matter what I think—you’re asking what the courts actually do, not what they should do).
So what you’re likely to get would be a morality clause that contains provisions like these:
A parent may not allow anyone 1) of the opposite sex, 2) who is not related to that parent by blood, 3) with whom that parent is involved in a romantic relationship, and 4) to whom that parent is not married, to stay with that parent overnight when any of the party’s minor children are in that parent’s care.
If the ex-spouse not heterosexual, the morality clause will need to account for that:
A parent may not allow 1) anyone who is not related to that parent by blood, 2) with whom that parent is involved in a romantic relationship, 3) and to whom that parent is not married, to stay with that parent overnight when any of the party’s minor children are in that parent’s care.
There is no perfect way to craft a morality clause*, but those I’ve provided above are good examples.
But bear in mind that merely having a morality clause in your decree is no guarantee that morality will rule and reign.
Morality clauses are extremely difficult to enforce because it is extremely difficult to prove that a parent is violating it.
Even if the kids report morality clause violations, the court usually requires more than Mom or Dad coming to court and saying, “Your Honor, the kids tell me. . .” This is because A) telling the courts what the kids allegedly told you is hearsay and generally not admissible evidence; B) little kids caught in the middle of their parents’ divorce aren’t the most credible of witnesses, as they are easily coached, coerced, and bribed to say anything; and C) generally don’t like to involve kids in divorce litigation.
*In one case in which I was involved the ex-husband claimed that the woman with whom he spent overnights when the kids were with him was “in a committed relationship with” him and thus not “unrelated” to him—fortunately, the court did not buy that argument. Other parents try to argue that the morality clause is not violated if the parent and his/her lover are in one room or tent or dwelling and the kids are in a separate room or tent or dwelling during the time the children are in that parent’s custody and care.
Utah Family Law, LC | divorceutah.com | 801-466-9277