There are a lot of things that are often important to my clients when it comes to custody post-divorce, but one of the first things they mention (particularly if their divorce is related to some sort of adultery) is that they don’t want overnight guests of the opposite sex while the child is in the other parent’s care.
It’s a common provision, and one we often see included in agreements. Sometimes, too, judges order that no overnight romantic guests should be present while the child is in each parent’s care. Most of the time (in fact, every single time that I can think of when I’ve had this provision in my own cases), it’s a mutual restriction – meaning, it applies to him as much as it applies to you. So, that, of course, is a consideration: do you WANT a restriction like this applied to you as well?
Assuming that you do – because, really, you’re probably less concerned with overnight guests of your own at this point than you are the influence of the people who he might chose to have around your child – read on.
What if he won’t agree to include this provision in our agreement?
Particularly if he’s already living with someone, or has already lined up his next victim (so to speak), he may be resistant to including this restriction in your written separation agreement. Even if he hasn’t met someone, he may not be entirely willing to sign away freedom in this way.
So, what can you do?
Well, really, the only thing you can do is litigate. It’s the same for every kind of provision that you hope to get written into the agreement. If he refuses, you can try to push back – but, ultimately, if he just won’t agree, there’s nothing to do but go to court and let a judge decide.
That’s expensive. And there are a lot of related questions. Specifically, would he be willing to agree to the rest of the items in the agreement, too, or if you go to court, will it derail all your negotiations? If you can reserve just the one issue for court – whether or not you can have unrelated overnight guests in the presence of the children – it’ll cost significantly less than if that ends all hope of negotiation and you end up litigating most of the rest of the points of your divorce.
It’s always a cost/benefit analysis. Is this worth it to you? Is it worth it to the tune of an additional $5,000, $10,000, or $15,000? Potentially even more, of course, depending on whether that means you’re litigating everything related to your divorce – like spousal support, custody and visitation, etc. It’s hard to estimate how much an entire contested case could cost, but in general they cost somewhere between $15,000 and $50,000. Is that a super wide range? Well, yeah. But contested cases don’t automatically have the same number of issues, or the same level of complexity as it relates to those issues. It’s very rarely comparing apples to apples. The more issues you’re facing, and the more difficult your husband, not to mention the attorney he hires, the more your divorce will ultimately cost.
If we go to court on this point, will the judge order no unrelated romantic overnight guests?
Maybe! It’s hard to say. Every court and every judge is different. Sensibilities are not the same from one person to the next.
I find that it’s easier with younger, more impressionable, children to get this restriction; with older children, the court would look more into the age, maturity, and understanding of the child. Sometimes, a guardian ad litem (GAL) will be appointed to represent the child’s interests.
Of course, the background information on your ex’s significant other can be important, too. If she’s got issues – past criminal background, untreated mental illness, etc – you may be more successful. It’s hard to say, though.
There are never any guarantees when you go to court. Obviously. If there were, no one would ever need to go to court!
I really want this provision – or something like it – in my agreement. Do I have other alternatives?
Sure. Sometimes, we limit the restriction on unrelated romantic overnight guests. We can put language that parents won’t have a boyfriend or girlfriend around the children until they’ve been together 6 months, until they’ve had an opportunity to introduce the girlfriend to the child’s other parent and been “approved” to meet the children, or whatever other limitation you think appropriate.
Of course, I don’t think this’ll be particularly successful if your child’s father thinks you’ll automatically and permanently veto any woman he ever meets. It would need to feel like there was a chance that his girlfriend could be accepted into the fold. If that’s not something you think you can do, though, it’s maybe not a good provision to include.
What if he violates the agreement?
After the agreement is signed, and particularly after the final decree is entered incorporating the agreement, you can enforce the agreement in court if he violates it. The way to do this would be to file a show cause.
Would there be a penalty? Ummm, well, that’s hard to say. Probably the judge would say, “Don’t do that anymore.” And unless he does it again, that may very well be the end of it. Depending on the language of your agreement, you may or may not be able to recover your attorney’s fees. It’s hard to say. Again, judges differ.
As an interesting aside, I will say: I once had a client who had a provision like this in her agreement. She had a boyfriend and, after a time, they moved in together. At first, she just moved into his house (with his two children), and he went elsewhere to sleep at night. Then, even that stopped.
Her husband was furious, of course. Predictably. We were in the middle of a huge custody case. Luckily, her husband was kind of crazy on a lot of other fronts, so he ended up getting a VERY limited visitation schedule. My client was never actually penalized for living with her boyfriend – and, really, it all kind of fizzled away to nothingness.
I do not recommend violating a court order, or even a signed agreement. It COULD end up being a very big deal, and you COULD potentially face consequences in court. I don’t tell you this story to suggest that you should behave this way, or that it will turn out fine for you if you do. You should follow your agreement to the letter – and any court orders as well – to avoid any potential catastrophic problems in your case. I only tell you this to illustrate the point that, even if you DO spend the money, and even if you DO get this order in place, it may be that you are frustrated in enforcing it later. It’s not like a failure to pay child support, or a failure to follow your agreement with respect to equitable distribution, where penalties are easier and follow more logically.
In the middle of a custody case (that is, before a determination has been made), not following your agreement is particularly risky because of the possibility that custody could be awarded in a lesser measure to you because of your inability to follow the rules.
These provisions are commonly included, but they’re definitely not universal. And though I’d never recommend that my clients not abide by the terms of their agreements or court orders, I do often find that (especially as applied to ex husbands), they sort of lack teeth. Violations may not be treated as aggressively as my clients would prefer that they would be. Again – that’s no reason for YOU not to follow a court order.
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