Custody cases are some of the most complicated that we see. The court views a divorce case as predominantly a business transaction. Though you may get laughed at if you say that it’s about “fairness”, there is a fair amount of consideration that goes into the equity of a particular way of dissolving the marriage. It’s fairly straightforward; what he gets, what she gets. There’s a certain amount of entitlement there, too. Whether wife stayed at home or not, for example, she has earned a portion of his retirement. If there’s a disparity in income, spousal support may be awarded. The equity in the marital home will be split. It follows a predictable pattern.
Standards in a custody case are different. Instead of looking at the family as a business and working backwards when it comes to dividing things, judges aim to look at the best interests of the child and make decisions from that vantage point.
The best interests of husband and wife, for example, are not criteria that are used in determining how things will be divided in a divorce, and you can probably already imagine, at least semantically, the difference that makes in how a divorce case is approached versus a custody case. The judge isn’t thinking about what’s “fair” (and again I feel compelled to tell you that I use the word fair very loosely here) for you and your husband; the judge is thinking only about what’s going to be best for your children in the long run.
Now, if you’re thinking, “Who is the judge to judge—literally—what’s best for my kids? Don’t I know best?” The answer is probably yes, but, of course, it’s more complicated than that. Often, in custody cases, mom and dad’s opinions are in direct opposition to each other. When that happens, a judge has to decide. And, often times, it’s not just a judge who is involved. In most cases, both parties have an attorney to represent them and provide evidence, witnesses, and testimony to the court regarding what’s appropriate. In some cases, there’s another person involved—a guardian ad litem (an attorney appointed to represent the interests of the child to the court) or a custody evaluator. In either case, the guardian ad litem or custody evaluator will make a recommendation to the court and, in most cases, their opinion is very well regarded by the judge. You may find it difficult to convince the judge of your opinion if it is in opposition to the guardian ad litem’s or custody evaluator’s opinion.
In some ways, the things that happen in custody cases are shocking to moms. It seems like, in a custody case, there are things that are within the control of the judge that shouldn’t be—like, for example, whether you’ll be able to relocate to be nearer to your family or to take a job that would, in your opinion, make all the difference in the world to your ability to be the kind of mother you want to be.
That’s the nature of custody cases in a lot of ways. There are so many things that go into your ability to parent that the judge will have a lot of control over the types of things that you’re allowed to do even after your case is “finished.” (I put finished in quotation marks there, because a custody case isn’t really finished until your child turns 18 or graduates from high school; many people find themselves going back and forth from court over and over again throughout the years.)
One of the things that rankles with moms is the prohibition against unrelated overnight guests. It’s something that is pretty commonly requested on one side or the other and, when requested, is often granted—at least by judges in the areas where I normally practice.
Do I have a prohibition on unrelated overnight guests? How would I know? What would that provision look like?
Prohibitions on unrelated overnight guests aren’t always a part of a custody case, so it’s entirely possible that you don’t have a restriction. To find out what applies in your case, you should go back and read either the agreement you and your husband reached with respect to custody and visitation, or the order the judge issued at your hearing. You’ll see the prohibition, if one exists, reflected in the language either in your agreement or on your order.
It’s not always granted, but it is something that comes up all the time. For many parents, it’s a real nuisance, too. Of course, the judge (and your ex husband or your child’s father) won’t be able to restrict your behavior when the kids aren’t in your care, but it is entirely possible that, when they are, you won’t be allowed to entertain unrelated overnight guests.
Sometimes, the provision is worded differently—it can say unrelated overnight guests, period, which would apply equally to men and women. It could say unrelated overnight guests of the opposite sex, which, obviously, would apply to just men. In my experience, these provisions are targeted towards a certain person or perceived problem. Sometimes, it can even say overnight guests, which is designed to include people, perhaps, who might be related and are causing a perceived problem. Make sure you pay attention to the language so that you know, specifically, to whom it applies.
My child’s father requested a prohibition on unrelated overnight guests. What can I do?
This is a hard one to combat, because there’s often not a really good argument for why you should be allowed to let your boyfriend sleep over. It’s pretty universally accepted that this isn’t all that appropriate, especially when minor children are around. It’s not fair; in fact, it can be downright discriminatory. But still, I want you to be aware of the confines around which we often have to work.
If the provision hasn’t already been ordered by the judge (or agreed to in a signed writing between you and your child’s father), you can argue it. If you’re negotiating something between you and your husband, you can simply refuse to sign any agreement including that provision. (Keeping in mind, of course, that if he insists on having it in, he can file in the court and litigate in front of the judge whether that provision will be included, increasing the time and cost involved with respect to your case.)
If you’re arguing in front of the judge, you can argue for why it shouldn’t be included. I think a good one is just that cohabitation isn’t illegal, so there’s no reason that the judge should hold you to a prohibition against it.
If you’re serious about your boyfriend, you could also get married. I know, I know—not a decision you want to jump into just so you can cohabitate. But you should be aware that, should you decide to marry, the prohibition would no longer apply. (Keep in mind, too, that he can also marry his girlfriend to avoid the provision as well.)
I want to ask for a prohibition on unrelated overnight guests! Is that a bad idea?
Keep in mind that what’s good for the goose is good for the gander, especially when it comes to unrelated overnight guests. If your child’s father has a girlfriend now, and you want to restrict her access to your children, that’s fine. But no judge is going to apply a restriction on your child’s father’s behavior and then allow you to continue to make whatever choices you want to make. If you’ve got a boyfriend, too—or you hope to have later on down the road—you might not want to take on this battle.
Remember that this prohibition is often the most restrictive for the parent who has the child more (in many cases, mom), and that you don’t want to shoot yourself in the foot by being obstinate now. Will you expect to be allowed to host guests overnight later on, should you choose to? If so, you might want to let this one go.
On the other hand, if you’re afraid that his current girlfriend is somehow harmful, you may choose to bring this up in court. Be careful that you don’t make any missteps, though; if you’re planning on campaigning against new girlfriend’s access to your kids, you’ll want to talk your theory (and any evidence you might have) over with an attorney.
Ultimately, you know best. But make sure you don’t jump forward with a gut reaction; take time to consider all the possible ramifications of your choices.
For more information, or to talk to one of our licensed and experienced Virginia custody attorneys, give our office a call at (757) 425-5200.