Tuesday, November 1, 2005

Case Law Development: Court May Properly Prohibit Visitation With Cohabiting Parent

The Michigan Court of Appeals affirmed a trial court's decision to modify visitation to prohibit any overnight guests of the opposite sex while the children had parenting time with either parent.   Father argued that he and his girlfriend wished to cohabit.  The court, however, noted that this consideration had nothing to do with the best interests of the child.  Because only Mother had expressed an opinion regarding the effect of exposing children to cohabitation, the court could honor that opinion in limiting parenting time.  The court noted that Michigan custody statutes allow "restrictions on the presence of third persons during parenting time." Moreover, the court commented that, "The social policy of the state of Michigan is established by the Legislature, not the courts, and we note that [a Michigan criminal statute] prohibits lewd and lascivious cohabitation. The Legislature has not repealed this statute."  "We are not commenting on the morality of the situation, but we respect the cohabitation statute that remains in existence. Such issues are better directed at the Legislature."

Muller v. Muller, 205 Mich. App. LEXIS 2659 (October 27, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051027_C259271_57_259271.OPN.PDF (last visited November 1, 2005 bgf)

For commentary from the bar on the decreasing prevalence of these "morality clauses" see the Georgia Family Law Blog post on the subject.

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_1.html

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