Father’s visitation with sons while cohabiting not against public policy

While a couple may reach agreement on child custody and visitation at the time of a divorce, the circumstances related to such an agreement may change over time, leading to fresh conflict even after the divorce is final. In such a case, one or both parents may request a modification to the agreement.

Visitation, in particular, may be a source of conflict, particularly as it relates to new romantic partners and their involvement with the children. The recent Arkansas Supreme Court case of Moix v. Moix provides an example.

A father seeks overnight visits with his sons

The husband and wife were divorced and shared joint custody of their three sons, with the wife acting as the primary custodian of the children. The father received reasonable visitation rights. The divorce settlement agreement also stated that neither party was to have overnight guests of the opposite sex.

About a year later, the wife petitioned the court to modify visitation, alleging that the father was in a romantic relationship with a live-in male companion and that the children had been exposed to the relationship. The wife requested sole custody of the children and suggested that overnight visitation with the children would not be in their best interest.

The father alleged that, after the mother remarried, his visitation had been reduced, one of the sons was requesting to spend additional time with his father, and the wife’s new husband was attempting to usurp his role as the father. The father requested a modification to allow overnight visits.

The circuit court found against the father regarding overnight visits, holding that public policy of the state required the court to impose a non-cohabitation restriction preventing the husband’s new partner from being present during any overnight visits. The father appealed this ruling.

Was public policy violated?

The Arkansas Supreme Court noted that there was a long-standing public policy against a parent’s extramarital cohabitation with a romantic partner in the presence of children. However, the primary consideration in a family law case is the best interest of the children, to which all other considerations are secondary. The policy against cohabitation must be considered under the circumstances of each particular case in light of the best interest standard.

Here, the court had found that the father and his partner were in a long-term, committed romantic relationship and that the partner posed no threat to the health or welfare of the children. In fact, the partner was a registered nurse working at a hospital specializing in children’s behavioral issues. Thus, the lower court’s decision against the father based simply on the public policy justification was reversed, and the child custody case was remanded for further proceedings.

Finding an acceptable custody and visitation agreement

Whether you are contemplating divorce or considering a request to modify an existing child custody arrangement, you will want to seek the counsel of attorneys with decades of combined experience in helping families create appropriate custody and visitation agreements. The right approach to the proceedings can be crucial to avoiding conflict now and in the future.