THE RELEVANCE OF ADULTERY AND EXTRA-MARITAL SEXUAL CONDUCT IN CUSTODY AND VISITATION CASES
© 1997 National Legal Research Group, Inc.

I. INTRODUCTION

This article will discuss how courts view a parent's sexual behavior as a factor in the initial custody proceeding, in determining appropriate visitation, and in modifying custody. We have tried to focus on cases decided after 1986.

The issue is a difficult one. As stated by one authority:

The  issue of a parent's nonmarital sexual relationships is one of the most inconsistently applied factors used to decide custody cases. The reason for the inconsistency is that this factor draws heavily on judges' emotions and personal backgrounds. Attitudes toward nonmarital sexual relationships, like attitudes toward the maternal preference, are shaped by one's personal background and family experience. Depending on one's perspective, the subject can bring forth anger, guilt, anxiety, fond memories, or a combination of feelings. The range of emotional reactions is reflected in conflicting rules of law.

1 Jeff Atkinson, Modern Child Custody Practice 4.36 at 282-83 (1986); see also Hafan, The Constitutional Status of Marriage, Kinship, and Sexual Privacy: Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463 (1983).

As an example of how judges' morals and values play an integral part of the custody equation, let us compare two cases. In VanName v. VanName, 308 S.C. 516, 419 S.E.2d 373 (Ct. App. 1992), prior to the divorce of the parties, the husband committed adultery. After the divorce, the husband continued his relationship with his paramour. The husband admitted that his paramour stayed overnight with him but did not stay overnight while the children were visiting. The appellate court affirmed a denial of change of custody to the husband, who had requested custody because of the mother's proposed move, because of the situation he presented to the children. By contrast, in Ford v. Ford, 14 Va. App. 551, 419 S.E.2d 415 (1992), the appellate court affirmed an award of joint custody to the husband and the wife, even though the evidence showed that the husband and his paramour spent many nights together. The court concluded that because the child and the paramour had established a nonthreatening, platonic relationship the award of joint custody should be affirmed.

Despite the difficulty in using the factor of a parent's sexual relationships, the courts do not shy away from employing the factor in their decisions. It has been surmised that the issue of nonmarital relationships, along with the general "stability" factor, arises more often than any other factor in custody cases. 1 Atkinson, supra, 4.36 at 283. Moreover, when that factor has been employed, the parent who engaged in the nonmarital sexual relationship was not awarded custody in 59% of the cases. Id. The parent seeking to use that factor against the other parent, therefore, has a better than even chance of being successful.

II. THE INITIAL CUSTODY DETERMINATION: THE RELEVANCE OF ADULTERY

A. The General Rule Stated

A few states do not list any specific factors a court must consider when deciding the custody of a child. Instead, the statutes in these states grant the court the power to decide child custody but list no specific factors other than the best interests of the child. (See Appendix following this article, listing all states' custody statutes and factors considered.)

Most states have adopted specific factors the court must consider. Some states have included within the laundry list of factors "the moral fitness or character" of the parent, while other states couch the character of the parent in other terms. Despite "moral fitness" as a factor to consider in custody, generally stated, marital misconduct such as adultery must be shown to have a present adverse effect on the child in order for the misconduct to be relevant. "A parent's morality, while a proper consideration, is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child." Hartley v. Hartley, 292 S.C. 245, 355 S.E.2d 869, 872 (Ct. App. 1987). The case of Tucker v. Tucker, 881 P.2d 948 (Utah Ct. App. 1994), in a state where "morals" are specifically considered, stated the rule thus:

Utah courts have previously noted that a custodial parent's censurable extra-marital sexual activities do not in and of themselves make him or her an unfit and improper person to have custody. The parent's activities must be shown to run contrary to the child's best interests. . . . [T]he trial court must link the parent's extra-marital activity with a resulting inability to function adequately as the custodial parent and meet the child's needs.

Id. at 954.

The West Virginia Supreme Court of Appeals, in J.B. v. A.B., 161 W. Va. 332, 242 S.E.2d 248 (1978), also stated the majority rule well:

Acts of sexual misconduct by a mother, albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the mother for child custody unless her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a mother with such a defective character.

242 S.E.2d at 249; accord Marisal v. Watkins, 914 P.2d 219 (Alaska 1996) (adultery is relevant only to the extent it affects the parent-child relationship); Hoing v. Hoing, 28 Ark. App. 340, 775 S.W.2d 81 (1989) (in order for adultery to be relevant, there must be evidence that it was in the child's presence or that the child was harmed by the relationship); In re Marriage of Werner, 144 Ill. App. 3d 263, 493 N.E.2d 1199 (1986) (court may consider a "relationship" outside of marriage to the extent that it bears on the parent's relationship with the child); In re Marriage of Combs, 78 Ill. App. 3d 533, 397 N.E.2d 255 (1979) (since the mother's adultery was the only factor the trial court examined, the case must be remanded for further findings concerning the best interests of the child); Williams v. Williams, 656 So. 2d 325 (Miss. 1995) (adultery, standing alone, will not work to deprive a parent of custody; other factors must take precedence); Massman v. Massman, 784 S.W.2d 848 (Mo. Ct. App. 1990) (there must be evidence that the parent's conduct has had or will have an adverse impact on the child before it can be considered); Hess v. Pedersen, 211 A.D.2d 1000, 621 N.Y.S.2d 747 (1995) (before adultery is relevant, it must be shown to affect the welfare of the children); Williams v. Williams, 188 A.D.2d 906, 591 N.Y.S.2d 872 (1992) (adultery is relevant only if it is demonstrated to have adversely affected the child's welfare); Sutherland v. Sutherland, 831 S.W.2d 283 (Tenn. Ct. App. 1991) (adultery must be considered in relation to the best interests of the child; in particular, the court must consider whether there was indiscretion involved or neglect of the child); Haase v. Haase, 20 Va. App. 671, 460 S.E.2d 585 (1995) (the mere fact of adultery, without more, is an insufficient basis upon which to find that a parent is unfit; adultery is one of several factors to consider).

Stated differently, the courts have concluded that custody should not be awarded to punish one party for misconduct directed at the other spouse or to award another party for virtue. Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991); Murphy v. Murphy, 205 Mont. 162, 666 P.2d 755 (1983) (record did not show that trial court made its decision to penalize wife for her marital misconduct); Fuchs v. Fuchs, 887 S.W.2d 414 (Mo. Ct. App. 1994) (child custody decisions are not to be made as punishment of a parent); T.B.G. v. C.A.G., 772 S.W.2d 653 (Mo. 1989) (en banc) (awarding custody of child to one spouse rather than the other should not be a reward or punishment for conduct of other spouse); Lenczycki v. Lenczycki, 152 A.D.2d 621, 543 N.Y.S.2d 724 (1989) (custody is not means to punish either party); Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. Ct. App. 1991) (custody award is not punishment); Matter of Marriage of Cabalquinto, 100 Wash. 2d 325, 669 P.2d 886 (1983) (child custody and visitation are not to be used to penalize or reward parents for their conduct). Indeed, as reaffirmed by one court, restrained sexual behavior does not make a parent unfit. Marilyn H. v. Roger Lee H., 193 W. Va. 201, 455 S.E.2d 570 (1995).

This sentiment is embodied in the Uniform Marriage and Divorce Act 402, 9A U.L.A. 561 (1987), which provides, "The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child." The Uniform Marriage and Divorce Act has been enacted in eight states (Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington). For example, in Burris v. Burris, 70 Ill. App. 3d 503, 388 N.E.2d 811 (1979), the court stated that allegedly immoral conduct, in and of itself, without a showing of detriment to the child, is insufficient proof of the unfitness of a proposed custodian. Accord In re Moore's Marriage, 35 Colo. App. 280, 531 P.2d 995 (1975) (trial court erred in determining that wife's living with man to whom she was not married disqualified her from acting as custodial parent where there was no showing that such conduct affected her relationship to the children); Rittenberry v. Rittenberry, 587 S.W.2d 847 (Ky. Ct. App. 1979) (sexual misconduct by parent must affect the relationship between the child and the parent in order for it to be a basis to deny custody to a parent); Kotila v. Kotila, 351 N.W.2d 661 (Minn. Ct. App. 1984); L.F.H. v. R.L.H., 523 S.W.2d 520 (Mo. Ct. App. 1976) (a mother's adulterous conduct does not automatically mark her as unfit to have custody of her child).

Finally, a minority of states, and a few scattered opinions in states that ostensibly follow the majority rule, take the position that even in the absence of any tangible proof of any adverse effects on the minor child from a parent's extra-marital relationship harm may be presumed. As stated by one court most recently:

In determining the best interests of the children, the court may consider the conduct of the parents. . . . There must be consideration of what conduct a parent may inspire by example, or what conduct of a child a parent may foster by condonation. Past and present activities may be a reliable guide to the priorities of a parent. . . . Consideration of conduct is not limited to that which has in fact detrimentally affected the children.

J.L.S. v. D.K.S., 943 S.W.2d 766, 775 (Mo. Ct. App. 1997); accord Jarrett v. Jarrett, 78 Ill. 2d 337, 400 N.E.2d 421 (1979); In re Marriage of Welbes, 327 N.W.2d 756 (Iowa 1982); Vincent v. Vincent, 420 So. 2d 1333 (La. Ct. App. 1982); Krug v. Krug, 647 S.W.2d 790 (Ky. 1983) (former husband was not required to first introduce evidence that alleged misconduct had adversely affected minor children before proffered evidence of misconduct could be admitted or considered by trial court); Jones v. Jones, 937 S.W.2d 352 (Mo. Ct. App. 1996) (private, personal conduct has a "moral value" that must be considered by the court); M. v. M., 688 S.W.2d 384 (Mo. Ct. App. 1985); Hicks v. Hicks, 214 Neb. 588, 334 N.W.2d 807 (1983); Wolfe v. Wolfe, 918 S.W.2d 533 (Tex. App. 1996) (the personal morality and moral environment in which a child will be raised is always relevant); Brinkley v. Brinkley, 1 Va. App. 22, 336 S.E.2d 901 (1985) (adultery is a reflection of a parent's moral values which should be considered in evaluating the moral climate in which a child is being reared). Even in these cases, however, the ostensible reason for denying custody was not to punish a parent but to protect a child. Cassidy v. Cassidy, 514 So. 2d 1198 (La. Ct. App. 1987) (purpose of the rule denying custody to a parent who maintains an adulterous relationship is not to punish the parent but to protect the children).

Even though the sexual conduct of a parent is considered only when it affects the parent-child relationship, the threat of evidence concerning a parent's sex life in a custody determination remains potent. It may be surmised, therefore, that the sexual conduct of a parent probably plays a significant factor in all the cases that settle prior to trial.

B. The General Rule Applied

A parent can have an affair and not lose custody because, as stated above, the focus should be on how the affair affects the parent-child relationship. At one end of the spectrum is the parent who has a one-time secret affair of which the child is totally unaware because the parent has not sacrificed any time with the child and has not let his or her parenting skills suffer. At the other end of the spectrum is the parent who has multiple lovers in a short period of time of which the child is completely aware. In between are many gray areas, and it is over these gray areas that the courts have struggled.

The "Discreet" Affair. A parent who has a discreet sexual relationship of which the child is unaware will generally not lose custody because of the affair. A parent who has a relationship of which the child might be aware but who refrains from having any sexual relationship in front of the child will also generally not lose custody. In essence, the court cannot presume that there is any harm to the child when a parent has an extra-marital relationship. Rather, there must be a showing of harm, or negative impact, on the child. Carr v. Carr, 480 So. 2d 1120 (Miss. 1985) (adultery may be an unwholesome influence in one case and have no effect in another case; it is one factor to consider).

For example, in Fletcher v. Fletcher, 447 Mich. 871, 526 N.W.2d 889 (1994), the Michigan Supreme Court reversed and remanded a case in which the trial court placed undue weight on the mother's extra-marital affair that was unknown to the children. The court stated:

Extramarital relations are not necessarily a reliable indicator of how one will function within the parent-child relationship. While such conduct certainly has a bearing on one's spousal fitness, it need not be probative of how one will interact with or raise a child. . . .

Unfortunately, extramarital relations are not uncommon incidents in divorce. Indeed, they are often the impetus for a marital breakdown. We do not take lightly the moral or destructive consequences of extramarital conduct on a marriage. Nevertheless, to punish infidelity at the risk of jeopardizing a child's best interests simply contravenes the overriding purpose of the Child Custody Act. Accordingly, we agree with the Court of Appeals to the extent that it found that the trial court committed legal error when considering the extramarital conduct[.]

526 N.W.2d at 896.

Similarly, in Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977), the appellate court reversed the trial court's award of custody to the father based on the mother's sexual relationship. The affair was discreet, the children did not know about it, and the mother had a warm and loving relationship with the children. Indeed, in one case, Stark v. Stark, 199 A.D.2d 798, 605 N.Y.S.2d 519 (1993), the mother was awarded custody of the children even though she had an affair with her husband's father because the affair had no effect on her children.

The courts have taken the view that other factors will outweigh evidence concerning adultery. As stated by one court, when fault is the predominant consideration, then the inquiry has shifted away from the best interests of the child. Hansen v. Hansen, 151 Vt. 506, 562 A.2d 1051 (1989) (reversing and remanding custody order in favor of father which was based on the alleged impact of the mother's extramarital affair where the trial court made no findings in support of the conclusion that the children were harmed). Thus, where an affair is discreet and has no impact on a child, it is simply irrelevant. Hearold v. Hearold, 620 So. 2d 48 (Ala. Civ. App. 1993) (mother's adultery was not in presence of children and did not affect their welfare; custody to mother affirmed); Howard v. Howard, 608 So. 2d 753 (Ala. Civ. App. 1992) (mother awarded custody of nine-month-old child where she had committed adultery and used marijuana but had excellent parenting skills); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993) (mother awarded custody despite admission of affair where there was no evidence of harm to the children); In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct. App. 1995) (custody awarded to mother where although she had affair at end of marriage, mother's role as primary caretaker was "comprehensive, and appropriately performed" and children were never placed in danger); In re Marriage of Donly, 528 N.W.2d 663 (Iowa Ct. App. 1995) (custody awarded to father, although he had an affair, where such custody was in best interests of children); Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 627 N.E.2d 474 (1994) (custody to mother although she had adulterous affair); Moak v. Moak, 631 So. 2d 196 (Miss. 1994) (mother's two affairs during marriage did not prevent her from being awarded custody where she was primary caretaker and it was in children's best interests); In re Marriage of Newberry, 745 S.W.2d 796 (Mo. Ct. App. 1988) (award of custody to mother affirmed where children did not know of her affair); Foreng v. Foreng, 509 N.W.2d 38 (N.D. 1993) (mother obtained custody of children where it was shown she carefully shielded her children from "her immoral activity"); Rowe v. Franklin, 105 Ohio App. 3d 176, 663 N.E.2d 955 (1995) (trial court abused its discretion in awarding custody of child to father on basis that mother was pregnant out of wedlock where mother had superior parenting skills); Michael T.L. v. Marilyn J.L., 363 Pa. Super. 42, 525 A.2d 414 (1987) (trial court unduly emphasized mother's affairs when the child was unaware of them and the affairs had no adverse impact on the child); Varley v. Varley, 934 S.W.2d 659 (Tenn. Ct. App. 1996) (mother properly awarded custody, despite her adultery, based on other factors); Moses v. Moses, 187 W. Va. 755, 408 S.E.2d 625 (1991) (mother's adultery did not negate her superior claim to custody as primary caretaker of young children where there was no evidence that any acts were committed in children's presence).

Thus, a parent who engages in a discreet affair during the marriage will not lose custody because of that affair. Rather, the court will focus on "parenting" factors such as which parent has been the primary caretaker of the child, whether the child is happy or upset and confused, and who can provide for the child a stable, loving environment. In re Marriage of Orte, 389 N.W.2d 373 (Iowa 1986) (custody award to mother affirmed, where she had affair with a student, when other factors did not militate against award of custody); Robinson v. Robinson, 328 Mass. 507, 615 A.2d 1190 (1992); Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990); Haase v. Haase, 20 Va. App. 685, 460 S.E.2d 591 (1995).

A parent who has a discreet sexual relationship of which the child is unaware, but who spends so much time away from home that the parent-child relationship suffers, will have a tough custody fight. For example, in McGiffert v. McGiffert, 627 So. 2d 972 (Ala. Civ. App. 1993), the mother was denied custody of the children not because the children were aware of the affair but because the court found that the mother put her needs over the needs of the children. As stated by one court, a parent cannot let "her affairs of the heart and body to interfere with her taking care of her own son." L.H.J. v. J.M.Y., 535 S.W.2d 304, 307 (Mo. Ct. App. 1976).

One father tried to argue that the fact that the adultery broke up the marriage, which in turn caused the children to feel anxiety about the parents' marriage breaking up, provided the causal connection between the adultery and the adverse impact on the children. Hansen v. Hansen, 151 Vt. 506, 562 A.2d 1051 (1989). The appellate court held that all children feel bad and anxious when their parents divorce, and the court was unwilling to hold that the adultery was the direct cause of that anxiety. Rather, the father would have to prove that the adultery itself caused the children to suffer.

Multiple and Notorious Affairs. A parent who has many lovers over a short period of time and whose children are aware of the relationships does not stand a good chance of obtaining custody. For example, in Murphree v. Murphree, 579 So. 2d 634 (Ala. Civ. App. 1991), custody was awarded to the father when the evidence showed that the mother had engaged in three adulterous affairs and that the children had had negative reactions to those affairs. Accord Parker v. Parker, 628 So. 2d 800 (Ala. Civ. App. 1993) (mother admitted to a number of adulterous acts during the marriage; adultery can be a factor, and award of custody to father was affirmed); Hall v. Hall, 577 So. 2d 469 (Ala. Civ. App. 1990) (custody awarded to father where mother was guilty of adultery and lied to her children about it); D.K.L. v. L.C.L., 764 S.W.2d 644 (Mo. Ct. App. 1988) (mother went "bar hopping" and engaged in many extra-marital relationships; custody affirmed to father); Lovin v. Lovin, 787 S.W.2d 865 (Mo. Ct. App. 1990) (where sex between mother and her friend occurred in the parties' home at times when preschool child was home, custody denied to mother; although sexual misconduct alone is not necessarily sufficient to deprive a parent of custody, morals are a pertinent factor for consideration when deciding the best interests of the child); Church v. Church, 230 A.D.2d ___, 656 N.Y.S.2d 416 (1997) (custody awarded to father where mother had affair and child was "confused" about presence of paramour in marital home); Bourlon v. Bourlon, 670 P.2d 1004 (Okla. Ct. App. 1983); In re Marriage of Maddox, 56 Or. App. 345, 641 P.2d 665 (1982); Haak v. Haak, 323 N.W.2d 128 (S.D. 1982); Brown v. Brown, 218 Va. 196, 237 S.E.2d 89 (1977) (an illicit relationship to which the minor children are exposed cannot be condoned).

It is an especially aggravating factor if the children find their parent in bed with the lover. Jennings v. Jennings, 490 So. 2d 10 (Ala. Civ. App. 1986) (mother slept with her boss in room adjoining child's); In re Marriage of Pothast, 539 N.W.2d 199 (Iowa Ct. App. 1995) (mother who slept with boyfriend in front of child in hotel properly denied custody); Hinz v. Hinz, 215 Neb. 335, 338 N.W.2d 442 (1983); Madson v. Madson, 313 N.W.2d 42 (S.D. 1981).

A less notorious affair can still cause a parent to lose custody if the affair causes the parent to neglect the child or to place the child in an embarrassing situation. In In re Marriage of Phillips, 244 Ill. App. 3d 577, 615 N.E.2d 1165 (1993), the mother committed adultery, and custody was awarded to the father. The appellate court took pains to point out that custody was not being awarded to the father on the basis of the mother's adultery but rather on the basis that the mother consistently lied about her activities, and her lies had upset and confused the children. Similarly, in Adam v. Adam, 436 N.W.2d 266 (S.D. 1989), the mother had an affair during the marriage. The child knew of the relationship, and it upset the daughter. Even more pertinent was that when the mother and daughter and paramour went on a camping trip the daughter was upset when the mother and paramour slept in the tent while the daughter slept in the car.

In another example, In re Marriage of Fynaardt, 545 N.W.2d 890 (Iowa Ct. App. 1996), the child found out about the mother's affair. The child, clearly upset, told the mother to choose between her paramour and her family. The mother chose the paramour by moving out of the house. During the divorce/custody trial, the child testified that she wanted to live with her father. The award of custody to the father was upheld because the mother had placed the child in the untenable position of trying to hold her family together.

Unclean Hands. Where both parties have committed adultery, the courts take the position that neither party may use the other party's adultery against him or her. Scott v. Scott, 665 So. 2d 760 (La. Ct. App. 1995); Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996).

In an interesting case applying the doctrine of unclean hands, Krabel v. Krabel, 102 Ill. App. 3d 251, 429 N.E.2d 1105 (1981), the father requested modification of custody based on the mother's illicit liaison with a suitor. The father claimed modification was warranted because the children were upset by their mother's behavior. The evidence showed, however, that the children were not even aware of their mother's behavior until the father called it to their attention. The appellate court concluded that the father had breached fundamental morality by causing the children's emotional trauma, and it denied him relief.

III. VISITATION RIGHTS: THE RELEVANCE OF POSTDIVORCE SEXUAL CONDUCT

In the previous section, we considered what relevance a parent's adultery may have in the initial custody determination. In this section, we consider a related matter: After the divorce is final, what relevance does a parent's extra-marital sexual behavior have on the terms of a visitation and custody order?

In most jurisdictions, mere proof of extra-marital sexual conduct by a parent is insufficient to impose conditions on visitation or custody that are designed to insulate the child from exposure to the parent's life. It must be shown that the parent's conduct is detrimental to the well-being of the child. See generally Diane M. Allen, Annotation, Propriety of Provision in Custody or Visitation Order Designed to Insulate Child from Parent's Extramarital Sexual Relationships, 40 A.L.R.4th 812 (1985).

A. Restraints on the Noncustodial Parent's Visitation Rights

Just as most courts require proof of actual harm to the child as the result of a parent's extra-marital affair before custody will be denied to that parent, so too do the courts generally take the position that there can be no restrictions on overnight visitation with the noncustodial parent based on the noncustodial parent's sexual conduct unless there is a specific showing of harm to the child resulting from the presence of the parent's lover.

For example, in In re Marriage of Hanson, 122 Ill. App. 3d 564, 445 N.E.2d 912 (1983), the Illinois Appellate Court reversed a prohibition on a father's overnight visitation imposed because the father was living with a woman to whom he was not married. In that case, the court concluded that a child of four was not likely to be influenced by his father's living arrangements and that any impact would be lessened because the father intended to marry the woman.

Similarly, in Miller v. Miller, 423 So. 2d 638 (Fla. Dist. Ct. App. 1982), the court concluded that a prohibition placed on the custodial father was improper:

Because restrictions of this nature impact upon the private life of the custodial parent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child. Here, the record is devoid of any supporting evidence.

Id. at 639-40; accord Nichols v. Nichols, 491 So. 2d 617 (Fla. Dist. Ct. App. 1986) (reversing restriction that mother could not have an adult male spend the night when the children were present; all such restrictions must be based on competent and substantial evidence proving allegations that the mother's conduct adversely affected the children); In re Marriage of Lawver, 82 Ill. App. 3d 198, 402 N.E.2d 430 (1980) (trial court abused its discretion in limiting father's visitation with his daughter to daytime visits outside the home he shared with an unmarried female where there was no evidence in the record to support the limitation); In re Marriage of Ullerich, 367 N.W.2d 297 (Iowa 1985) (restriction on noncustodial mother's visitation was overbroad as it did not relate to child's health, education, and welfare); Harrington v. Harrington, 648 So. 2d 543 (Miss. 1994) (reversing prohibition on overnight visits with father when he was living with woman and reversing prohibition that father not even discuss with the children his relationship with his live-in companion); Parker v. Parker, 918 S.W.2d 299 (Mo. Ct. App. 1996) (court erred in entering order restricting noncustodial mother's visitation to periods when overnight visitors of the opposite sex unrelated by blood or marriage were not present); Hummel v. Hummel, 191 A.D.2d 296, 595 N.Y.S.2d 37 (1993) (court erred in imposing condition on noncustodial father's visitation that no unrelated females be present; court imposed condition without any explanation and without showing it was necessary, and evidence showed that father's companion was supportive and beneficial to child); Somers v. Somers, 326 Pa. Super. 556, 474 A.2d 630 (1984) (provision prohibiting children from visiting father while unrelated female was present was unnecessarily and unreasonably overbroad but could be modified to prohibit overnight visitation of father's girlfriend); Fatemi v. Fatemi, 339 Pa. Super. 590, 489 A.2d 798 (1985) (court's imposition of restrictions on mother's visitation could not stand where it was based only on father's vague and general allegations that mother's nonmarital associations would cause her to neglect the children).

In a particularly interesting case, Kelly v. Kelly, 217 N.J. Super. 14, 524 A.2d 1330 (Ch. Div. 1986), the court allowed the father to have overnight visitation with his children even though he was living with a woman to whom he was not married. The mother argued that she, as the custodial parent, had the right to direct the children's religious and moral upbringing. The court disposed of the mother's arguments, see Laura W. Morgan, Post-Divorce Disputes Concerning the Religious Upbringing of Children, 9 Divorce Litigation 135 (July 1997), and held that the father's living arrangements were not harmful to the children and that he had a right to expose his children to his lifestyle.

Some courts, Louisiana in particular, will prohibit a noncustodial parent from having overnight visitation by his or her child if an unrelated adult of the opposite sex is present. These courts presume that nonmarital sexual relationships are harmful to the child. For example, in LeBlanc v. LeBlanc, 490 So. 2d 763, 766 (La. Ct. App. 1986), the court found that the following order was proper and in the best interests of the child: "[The father shall] not have any female companion sleep over day or night at his dwelling or any other private or public dwelling when the children are in his care." Accord Lasseigne v. Lasseigne, 434 So. 2d 1240 (La. Ct. App. 1983) (father could not exercise visitation in his home while the woman he was living with in open concubinage was present in the home); Billiot v. Billiot, 422 So. 2d 238, 239 (La. Ct. App. 1982) (allowing such visitation would undermine the child's respect for the "family institution"); Duplantis v. Monteaux, 412 So. 2d 215 (La. Ct. App. 1982) (trial court did not abuse its discretion in conditioning father's visitation rights on his refraining from keeping the company with any woman to whom he was not married during periods of visitation during daylight hours); Larroquette v. Larroquette, 293 So. 2d 628 (La. Ct. App. 1974) (it was not in the best interests of the child below the age of puberty to have visitation in the home of her father who was living in open concubinage, especially where the father, daughter, and paramour shared the same bed).

Similarly, in Carrico v. Blevins, 12 Va. App. 47, 402 S.E.2d 235 (1991), the court held that it was within the trial court's discretion to prohibit the noncustodial mother from allowing an adult male to whom she was not married to spend the night with her when she exercised visitation with her seven-year-old son. The court stated:

Although we do not hold that the moral values of the custodial parent are necessarily the deciding factor, we do hold that they may be considered in imposing visitation restraints.

402 S.E.2d at 237; accord Thornburg v. Thornburg, 628 So. 2d 885 (Ala. Civ. App. 1993) (court affirmed restriction on father's visitation that he would not exercise visitation in the presence of an unrelated female); DeVita v. DeVita, 145 N.J. Super. 120, 366 A.2d 1350 (App. Div. 1976) (trial court did not abuse its discretion in imposing conditions on father's visitation rights in his home even though there was no evidence of sexual activity on the part of the father, and there was no evidence of any harmful psychological effects on the children); In re Marriage of Fulwiler, 22 Or. App. 311, 538 P.2d 958 (1975) (approved without discussion visitation order that father could not take his five-year-old son to father's home until he and the woman he lived with were married); Rivers v. Rivers, 322 N.W.2d 864 (S.D. 1982) (affirming prohibition of overnight visitation by two daughters with their father because children would be "confused" by fact that father was living with woman to whom he was not married).

Other courts have affirmed the restrictions but only after finding a specific harm to the children. For example, in Commander v. Commander, 493 So. 2d 530 (Fla. Dist. Ct. App. 1986), the trial court denied the noncustodial mother visitation with her children as long as she was cohabiting with her paramour. The court found that she had become pregnant out of wedlock, and she was sleeping on the sofa in the living room with her paramour while the children were present in the house. The harm to the children was "reasonably anticipated" to support the restriction. Id. at 533; accord Gallo v. Gallo, 184 Conn. 36, 440 A.2d 782 (1981) (restriction prohibiting father from having overnight female guests while child was present was proper, given evidence that all three shared same bedroom); Palmer v. Palmer, 138 Vt. 412, 416 A.2d 143 (1980) (restriction on noncustodial father's visitation to prevent overnight stays by female friends was proper given ages of children).

B. Restraints on the Custodial Parent's Custody

Placing restrictions on the living conditions of the custodial parent is usually improper in the absence of evidence of specific harm to the child. For example, in In re Marriage of Poulson, 70 Or. App. 505, 690 P.2d 526 (1984), the decree awarded the mother custody of the parties' two children. The decree also provided that the mother not permit any unrelated males to stay overnight in the home when the children were present. The general language, the court held, made an anticipatory moral judgment with respect to the mother's future relationship with a man. The court could not, without evidence, conclude that such a restriction was in the children's best interests. Accord In re Marriage of Wellman, 104 Cal. App. 3d 992, 164 Cal. Rptr. 148 (1980) (mother ordered not to have any overnight visitation with members of the opposite sex; order was error where there was no investigative report and no evidence as to the impact of any relationship on the children); Draper v. Draper, 403 So. 2d 989 (Fla. Dist. Ct. App. 1980) (in absence of a finding that mother's relationship with particular man was adversely affecting the children's welfare, restriction that prohibited certain male friend from being with mother was error); Smith v. Smith, 396 So. 2d 252 (Fla. Dist. Ct. App. 1981) (prohibition on mother overbroad in absence of any concrete evidence; prohibitions cannot be placed on custody arbitrarily at request of noncustodial parent in effort to protect morals of children); In re Marriage of Walter, 27 Or. App. 721, 557 P.2d 57 (1976); Schwantes v. Schwantes, 121 Wis. 2d 607, 360 N.W.2d 69 (Ct. App. 1984).

Some courts have, however, approved such orders without any specific showing of harm. E.g., Fulco v. Fulco, 259 La. 1122, 254 So. 2d 603, 606 (1971) (court approving order that prohibited mother from any course of "open sexual indiscretion and probable immorality"); Parillo v. Parillo, 554 A.2d 1043 (R.I. 1989) (affirming order prohibiting custodial parent from having unrelated males stay overnight even though children said they got along well with mother's live-in friend).

Where there is a specific showing of harm, restrictions may be approved. For example, in McCallum v. McCallum, 256 A.2d 911 (D.C. 1969), the trial court properly granted a preliminary injunction to prohibit the mother from allowing her paramour to live at the family domicile. The court had specific evidence that the paramour had a detrimental effect on the parent-child relationship, and so the adultery was secondary.

IV. CUSTODY: THE RELEVANCE OF POSTDIVORCE SEXUAL CONDUCT

Oftentimes, the noncustodial parent will seek to modify custody on the basis that the custodial parent's extra-marital sexual conduct is a bad influence on the child. As with initial custody determinations, most courts have taken the position that a parent's sexual behavior simply is not relevant unless it can be shown to have a concrete and specific impact on the welfare of the child. See generally Note, Child Custody Modification Based on a Parent's Non-Marital Cohabitation: Protecting the Best Interests of the Child in Virginia, 276 Rich. L. Rev. 915 (1993); Annotation, Custodial Parent's Sexual Relations with Third Person as Justifying Modification of Child Custody Order, 100 A.L.R.3d 625 (1980). As stated by one court:

A custodial parent cohabiting with another may be deprived of custody of the child only upon a showing that the parent's cohabitation has an adverse effect on the welfare of the child.

Simons v. Simons, 566 N.E.2d 551, 555 (Ind. Ct. App. 1991). A good statement of this rule is also found in Wilhelmsen v. Peck, 743 S.W.2d 88 (Mo. Ct. App. 1987). In that case, the court stated that adultery does not require a change in custody from one parent to the other unless the moral conduct of the offending spouse is so gross, promiscuous, open, and coupled with other types of objectionable behavior as to directly affect the physical, mental, economic, or social well-being of the child. Simply stated, then, where the custodial parent's heterosexual relations outside of marriage are hidden from the child, custody should not be modified. Elmore v. Elmore, 586 So. 2d 935 (Ala. Civ. App. 1991); In re Marriage of Krebsbach, 395 N.W.2d 189 (Iowa Ct. App. 1986); Cooley v. Cooley, 643 So. 2d 408 (La. Ct. App. 1994); In re Marriage of F., 602 S.W.2d 227 (Mo. Ct. App. 1980); Krohn v. Krohn, 217 Neb. 158, 347 N.W.2d 869 (1984).

A. Modification Not Granted

A good example of how a trial court can leap from the premise that a parent is having sex to the wrong conclusion that the children are harmed thereby is Bridges v. Bridges, 197 Ga. App. 608, 398 S.E.2d 860 (1990). In that case, the husband moved for modification of custody based on the mother's sexual activity. The court granted the change based on the mother's admissions that she had violated the statutes prohibiting fornication and adultery, and further concluded that the mother had violated these statutes in the presence of the children. The appellate court reversed, holding that merely because sexual intercourse was an element of each of the crimes did not mean that the mother had sexual intercourse in front of the children. The mother was correct in her argument that there was no evidence to authorize the finding that the children were even aware of her sexual activity. The case was remanded back to the trial court to make findings consistent with the evidence.

Smith v. Smith, 586 So. 2d 916 (Ala. Civ. App. 1991), also provides a good example of what the court will and will not consider in a modification proceeding. In that case, the father had been awarded custody of the parties' child, despite the father's infidelity during the marriage. In the initial custody proceeding, the court had determined that the father, despite his infidelity, would be the preferable custodial parent. After the divorce, the mother moved for a change of custody based on the father's continuing sexual misconduct. The appellate court held that before sexual misconduct may be considered it must be shown to be detrimental to the child. The mother's evidence failed to show any ill effects on the child, and several witnesses had, in fact, testified that the child enjoyed a very warm and close relationship with the father. Accord West v. West, 469 So. 2d 610 (Ala. Civ. App. 1984) (postseparation adultery was not sufficient basis to change custody of nine-month-old daughter where there was no evidence daughter was harmed thereby); Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (1987) (modification of custody from mother to father reversed where change was based on mother's sexual conduct; there was no evidence of harm to child); In re Marriage of Olson, 98 Ill. App. 3d 316, 424 N.E.2d 386 (1981) (trial court did not abuse discretion in refusing to modify custody from mother to father even though mother was having sexual relationship with a man outside of marriage, where the mother's conduct did not threaten the moral, emotional, or mental health of the child); Willcutts v. Willcutts, 88 Ill. App. 3d 813, 410 N.E.2d 1057 (1980) (trial court did not err in refusing to transfer custody from father to mother, although father's fiancÇ occasionally spent the night with father, where there was no evidence of any negative effect on the children); Rittenberry v. Rittenberry, 587 S.W.2d 847 (Ky. Ct. App. 1979) (trial court erred in modifying custody from mother to father's brother and sister-in-law based completely on mother's adultery; as a matter of law, facts in the case were not sufficient to deny natural mother her child solely on basis of adultery); Truitt v. Truitt, 172 Mich. App. 38, 431 N.W.2d 454 (1988) (unmarried cohabitation is not enough to constitute immorality for child custody modification); Ballard v. Ballard, 434 So. 2d 1357 (Miss. 1983) (trial court erred in changing custody from mother to father based solely on fact that mother's boyfriend had spent the night, when he slept fully clothed on the couch, and child was well-behaved and well-adjusted); Helgenberger v. Helgenberger, 209 Neb. 184, 306 N.W.2d 867 (1981) (trial court did not err in refusing to modify custody from mother to father, although mother allowed her boyfriend to spend the night on occasion; evidence fell far short of establishing that she was not fit to have custody); McDonald v. McDonald, 94 A.D.2d 856, 463 N.Y.S.2d 598 (1983) (custody of children would not be modified where although mother occasionally spent night with boyfriend children were otherwise physically and psychologically healthy, attended church, and performed well in school; father failed to offer any evidence that mother engaged in conduct detrimental to the well-being of the children); Whaley v Whaley, 61 Ohio App. 2d 111, 399 N.E.2d 1270 (1979) (trial court erred in changing custody from mother to father based solely on mother's relationship with married man who was planning to divorce his wife and marry mother absent any showing of changed circumstances affecting the child); Burr v. Morgart, 339 Pa. Super. 341, 488 A.2d 1155 (1985) (custody would not be modified from mother to father where one instance of sexual misconduct was alleged and child showed no adverse affects from alleged incident); Dent v. Dent, 273 S.C. 387, 256 S.E.2d 743 (1979) (sexual act of mother with one other man since her divorce was not sufficient basis to change custody where this act was an isolated occurrence and her conduct did not indicate moral laxity); Hulm v. Hulm, 484 N.W.2d 303 (S.D. 1992) (no evidence that child suffered any harm from mother's sexual relationship); Gould v. Gould, 116 Wis. 2d 493, 342 N.W.2d 426 (1984) (trial court erred in transferring custody from mother to father based on mother's cohabitation where child was well-adjusted at home and school, and court could only speculate that mother's relationship might cause harm).

Even where a parent's sexual conduct may be considered "extreme," custody modification will be denied if there is no ill effect on the child. In Shoemaker v. Shoemaker, 812 S.W.2d 250 (Mo. Ct. App. 1991), after the divorce the mother began living with her paramour. She then became pregnant by him but broke off the relationship, refusing to marry him. The court refused to modify custody, holding that the evidence showed that the mother had chosen to have a second child before medical problems prohibited her from having more children, the mother had intelligently chosen not to marry the paramour, and there was nothing in the record to suggest that the welfare of the child had been or would be adversely affected by the mother's decisions. Further, the record showed that the child was doing well with the mother. Accord In re Rex, 3 Ohio App. 3d 198, 444 N.E.2d 482 (1981) (although mother had two children out of wedlock since divorce and maintained sexual relationship with two different men, there was no evidence her conduct had affected the development of the children). But see Helms v. Helms, 185 Mich. App. 680, 462 N.W.2d 812 (1990) (where mother was pregnant, unmarried, and living with boyfriend, custody properly changed to father).

When the noncustodial parent seeks a modification of custody based on the custodial parent's sexual conduct, usually with a live-in lover, the custodial parent will often try to mitigate the damage of the behavior by marrying the lover. The strategy often is successful as it defuses the issue of moral unfitness. E.g., Sain v. Sain, 426 So. 2d 853 (Ala. Civ. App. 1983); Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986); In re Marriage of Cripe, 183 Ill. App. 3d 37, 538 N.E.2d 1175 (1989); In re Marriage of Macaluso, 110 Ill. App. 3d 838, 443 N.E.2d 1 (1982); Smith v. Smith, 615 So. 2d 926 (La. Ct. App. 1993); Peyton v. Peyton, 614 So. 2d 185 (La. Ct. App. 1993) (adopting "reformation rule" whereby parent who is engaged in extra-marital sexual conduct may "reform" bad behavior by marrying paramour); Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780 (1985); Wyss v. Wyss, 3 Ohio App. 3d 412, 445 N.E.2d 1153 (1982); Pea v. Pea, 498 N.E.2d 110 (Ind. Ct. App. 1986); Nauman v. Nauman, 336 N.W.2d 662 (S.D. 1983); cf. Bagents v. Bagents, 419 So. 2d 460 (La. 1982) (mother's remarriage did not show sufficient reformation of inferior moral character).

B. Modification Granted

Where the party requesting modification can show that the child is harmed by the custodial parent's sexual behavior, then custody may be changed. For example, in Wells v. Wells, 648 P.2d 1223 (Okla. 1982), the father moved for modification of custody based on the mother's cohabitation with a boyfriend. The trial court granted the change, and the appellate court affirmed, based on the finding that the children did not like the arrangement and had in fact objected to the arrangement. Similarly, in Petrovich v. Petrovich, 513 So. 2d 411 (La. Ct. App. 1987), the court found that once the mother began her relationship with her gentleman friend she was no longer interested in her daughters and preferred to spend her time with the paramour. Custody was properly changed to the father. Accord Harbin v. Harbin, 495 So. 2d 72 (Ala. Civ. App. 1986) (custody modified to father where mother lived with man, and she and paramour and child all slept in the same bed); Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984) (custody modified from mother to father where mother had overnight male guests on a regular basis and children were subjected to impermanent, unstable living environment); Theriot v. Huval, 413 So. 2d 337 (La. Ct. App. 1982) (children testified they were embarrassed about mother's relationship with man, mother favored man's children over her own, and mother stated she would uproot family to follow him); M.P. v. S.P., 793 S.W.2d 510 (Mo. Ct. App. 1990) (son testified that mother's pregnancy embarrassed him); M.D. v. C.D., 691 S.W.2d 406 (Mo. Ct. App. 1985) (where child was aware of mother's sexual conduct, and child was adversely affected, as demonstrated by son's sexual dreams and sexual aggression to other children, custody properly modified); Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975) (custody changed from mother to father where mother had continued relationship with unmarried man, allowed him to remain in her home far into the night, engaged in illicit conduct in her home when the children were in close proximity, older children were aware of the relationship, and schoolwork of older children had suffered); Quick v. Quick, ___ A.D.2d ___, 641 N.Y.S.2d 473 (1996) (change of custody warranted where evidence showed children had seen explicit sexual activity in mother's home and children were traumatized); Boykin v. Boykin, 296 S.C. 100, 370 S.E.2d 884 (Ct. App. 1988) (modification granted based on mother's flagrant promiscuity; mother became accustomed to partying with various friends, drinking beer, smoking marijuana after work, and she admitted that she had sex with at least five men during period of less than one year); Shioji v. Shioji, 712 P.2d 197 (Utah 1985) (children embarrassed and uncomfortable with other family members as a result of mother's boyfriend's frequent overnight visits).

A person's choice of lover can, in and of itself, also be grounds for modification. Of course, if a parent takes up with a drug abuser, child molester, or alcoholic, a change of custody will be in the best interests of the child, because the child may be in imminent danger. Beam v. Beam, 543 So. 2d 700 (Ala. Civ. App. 1989) (mother involved with man who was convicted of child molesting); Bettin v. Bettin, 404 N.W.2d 807 (Minn. Ct. App. 1987) (mother involved with man who was convicted of criminal sexual conduct with a child); DiMagno v. DiMagno, 192 W. Va. 313, 452 S.E.2d 404 (1994) (mother involved with man arrested for indecent exposure); see also Brady v. Brady, 603 P.2d 361 (Okla. Ct. App. 1979) (court modified custody where mother was living with 16-year-old boy and expressed no concern over immoral example she was setting for her daughters); D. v. D., 291 Pa. Super. 589, 436 A.2d 657 (1981) (custody of child granted to father after mother began affair with her 15-year-old nephew; mother's affair revealed a lack of parenting skills).

Again, in Louisiana, the courts appear to presume that mere cohabitation, in and of itself, is enough to warrant modification. In Bagents v. Bagents, 408 So. 2d 393 (La. Ct. App. 1981), the court changed custody from the mother to the father, based on the mother's "open concubinage" with a married man and her attitude that there was nothing wrong with the relationship since the mother and her lover planned to be married as soon as he was divorced. The court changed custody despite the fact that the father's adultery had been the grounds for the divorce. Accord Pleasant v. Pleasant, 448 So. 2d 824 (La. Ct. App. 1984) (change of custody of two boys from mother to father affirmed on a finding that mother's boyfriend frequently spent the night while the children were present, even though mother was, in all other respects, a good mother and had since the petition for modification ceased her relationship with the boyfriend); Shanklin v. Shanklin, 376 So. 2d 1036 (La. Ct. App. 1979); see also Bell v. Bell, 154 Ga. App. 290, 267 S.E.2d 894 (1980) (court properly transferred custody from mother to father where mother lived with male without benefit of matrimony).

V. CONCLUSION

When a parent's sexual behavior has a direct and discernible impact on the welfare of the child, the parent's behavior should generally have an impact on custody and visitation issues. Such an impact includes not only the obvious case of when a child has personally viewed the parent's behavior but also those cases where the child and the parent's paramour are unable to interact amicably.

The issue is somewhat more complex regarding how a court should weight adultery during the marriage in its initial custody determination. It is not unrealistic to expect a parent to honor the promise of fidelity within the bonds of marriage; the breaking of that promise has consequences not just to the other spouse but to the entire family. Nevertheless, the conclusion must be reached that infidelity is a wrong to the marriage, not to the children. A person can be an unfaithful spouse but a most faithful and protective parent. Therefore, adultery and extra-marital conduct during the marriage should have no bearing on any custody or visitation issue at the time of divorce when the conduct does not adversely affect the child.

With regard to postdivorce conduct, it is unrealistic for a court or a former spouse to expect a parent to maintain complete chastity. Therefore, as long as a parent's postmarital sexual conduct does not affect the child, the common-sense approach is that the parent's behavior should not have an impact upon custody and visitation issues.