Wednesday, May 29, 2013

Cohabitation Provisions Do Not Make Sense

The piecemeal, state-by-state nature of same-sex marriage often causes problems. The Associated Press describes one such problem succinctly:

A judge has ruled that a North Texas lesbian couple can't live together because of a morality clause in one of the women's divorce papers. The clause is common in divorce cases in Texas and other states. It prevents a divorced parent from having a romantic partner spend the night while children are in the home. If the couple marries, they can get out from under the legal provision — but that is not an option for gay couples in Texas, where such marriages aren't recognized.

I often see cohabitation provisions in custody orders, but they are less common than they used to be. The rationale behind cohabitation provisions is to protect children from their parent being distracted by a new lover, or from a succession of sketchy characters drifting in and out of their lives. Nevertheless, I believe that cohabitation provisions are poor tools. It would make more sense to evaluate mommy or daddy's new friend based upon his or her particular character. Cohabitation provisions are blanket restrictions on a parent's right of association without discerning the good from the bad.

Apparently, this county's local rules include a "standard" divorce order that includes a cohabitation provision. Is that order mandatory, or is it just a suggested example? If the cohabitation provision is not actually mandatory, did the mother have counsel at the time of the divorce? Did the mother's counsel try to strike the provision? If the provision is mandatory, would it have been possible to file the divorce in a different county? The best practice for lawyers might be to look at example orders with a critical eye, rather than unthinkingly copying them.

Going forward, I wonder if this mother could file a motion to modify the order to strike the cohabitation provision.

This cohabitation provision adversely impacts same-sex couples in Texas. It is true, as the judge and the father's attorney disingenously point out, that the provision is gender-neutral. However, in Texas, cohabitating opposite-sex couples can comply with the cohabitation provision by getting married. Same-sex couples cannot get married in Texas, nor will Texas recognize their out-of-state marriage. Same-sex couples are left without a remedy that opposite-sex couples have.

The tragedy in this case is that, by enforcing the cohabitation provision, the judge is creating a certainty of harm to the children by disrupting their home.

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