New Boyfriend effects custody?

Question

Does a long time divorced woman risk losing custody because she had sex in the house when the child was home with a
boyfriend? Not in front of the child, merely in the same house. Is this considered against some custody arrangement?

Answer 1

There was a recent case in Michigan on this issue. I think that the Michigan Supreme Court held that the issue was not properly addressed otherwise, but practitioners have not reached a consensus.


S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
NICOLETTE MULLER,
Plaintiff-Appellee,
UNPUBLISHED
October 27, 2005
v No. 259271
Oakland Circuit Court
CHRISTIAN MULLER,
LC No. 03-675204-DM
Defendant-Appellant.
Before: Hoekstra, P.J., and Gage and Wilder, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted an order restricting the presence of unrelated
members of the opposite sex during overnight parenting time. We affirm.
Plaintiff and defendant share joint legal custody of their two minor children, while
plaintiff has sole physical custody. Defendant’s parenting time schedule includes alternating
weekends and holidays, with expanded parenting time during summers. After learning that
defendant permitted his girlfriend to stay in his home during overnight visitation, plaintiff sought
to modify defendant’s parenting time. The trial court entered an order prohibiting both parties
from having “an unrelated member of the opposite sex overnight while having parenting time
with the minor children.” Defendant challenges this order because he and his girlfriend desire to
cohabitate but do not wish to marry.
Defendant argues the trial court erred in restricting the presence of his current girlfriend
while his minor children are in his custody for overnight parenting time. We review parenting
time orders de novo. We will not reverse an order unless (1) the factual findings on which the
order is based are against the great weight of the evidence; (2) the court abused its discretion; or
(3) it committed a clear legal error. Brown v Loveman, 260 Mich App 576, 591-592; 680 NW2d
432 (2004).
The Child Custody Act, MCL 722.21 et seq., governs disputes about parenting time.
Thames v Thames, 191 Mich App 299, 305; 477 NW2d 496 (1991). Defendant is correct that
“Parenting time shall be granted in accordance with the best interests of the child.” MCL
722.27a(1). In accordance with MCL 722.27a(8)(c), an order for parenting time “may contain
any reasonable terms or conditions that facilitate the orderly and meaningful exercise of
parenting time by a parent,” including “[r]estrictions on the presence of third persons during
parenting time.” The social policy of the state of Michigan is established by the Legislature, not
-2-
the courts, and we note that MCL 750.335 prohibits lewd and lascivious cohabitation1. The
Legislature has not repealed this statute.
The trial court recognized the best interests of the children standard on the record at the
hearing and in its written opinion. Although the trial court did not specifically articulate any
findings regarding the best interests of the children, there is no indication that it failed to
consider them when making its decision. It appears as if the best interests of the children were
not actually the issue before the trial court because their best interests would be served regardless
of whether the trial court permitted the parties to have unrelated overnight guests of the opposite
sex. Plaintiff did not believe that the children should be exposed to the cohabitation of
unmarried couples. The trial court found that defendant did not express a position one way or
the other about the cohabitation of unmarried couples. Because only one party expressed an
opinion on this issue, the trial court issued an order honoring that opinion. We are not persuaded
that this constitutes an abuse of discretion or legal error. Brown, supra at 591-592. 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.
Defendant next asserts that the trial court order violates his First Amendment right to
freedom of religion by forcing plaintiff’s morals upon him. Defendant correctly notes the
“fundamental constitutional right of parents to raise their children and make decisions regarding
visitation[.]” Greer v Alexander, 248 Mich App 259, 265; 639 NW2d 39 (2001), citing Troxel v
Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000). This right is recognized in
both the parties’ judgment of divorce and by statute. MCL 722.27a(9). However, neither party
identified their participation or adherence to a specific religious belief system. See Van
Koevering v Van Koevering, 144 Mich App 404, 408; 375 NW2d 759 (1985). Therefore, this
argument is without merit.
Defendant claims that the trial court failed to consider evidence, including his expert’s
testimony, regarding the best interests of the children. Defendant did not express a personal
belief contrary to plaintiff’s; he merely stated that he wants to accommodate his girlfriend’s
aversion to the institution of marriage. Because the trial court was not being asked to resolve a
dispute between opposing views of morality, it determined that any evidence of morality or
sexuality was irrelevant. It therefore resolved the issue in favor of plaintiff, the only party who
expressed an affirmative belief on this issue. The testimony of defendant’s expert focused on the
well being of defendant’s relationship with his girlfriend and its impact on the children, not on
defendant’s beliefs. Although the trial court did not discuss the expert’s testimony in its opinion,
it is not apparent that it failed or refused to consider it.
Defendant also contends that the trial court erred in denying his request for an evidentiary
hearing and ruling against the referee’s recommendation. Defendant’s argument is misplaced
1 Black’s Law Dictionary (6th ed), defines “lewd and lascivious cohabitation” as follows:
“Within criminal statutes, the living together of a man and woman not married to each other as
husband and wife.”
-3-
because the trial court did conduct an evidentiary hearing on August 3, 2004, and the trial court
never referenced the referee’s recommendation.2
In the relief requested portion of his appellate brief, defendant seeks this Court’s
intervention to disqualify the trial judge and to suspend his performance on unrelated provisions
of the judgment of divorce pertaining to property settlement. Based on defendant’s failure to
properly present these requests within the statement of issues presented, they are deemed waived
and not subject to appellate review. MCR 7.212(C)(5); Busch v Holmes, 256 Mich App 4, 12;
662 NW2d 64 (2003).
Affirmed.
/s/ Joel P. Hoekstra
/s/ Hilda R. Gage
/s/ Kurtis T. Wilder
2 We also note that neither party requested review of the friend of the court determination, which
is not automatic. MCR 3.215(E)(4).


Order
March 8, 2006
130041
NICOLETTE MULLER,
Plaintiff-Appellee,
v SC: 130041
COA: 259271
Oakland CC: 03-675204-DM
CHRISTIAN MULLER,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 27, 2005
judgment of the Court of Appeals is considered, and it is DENIED. The Oakland Circuit
Court entered an order in this case that “neither party shall have an unrelated member of
the opposite sex overnight while having parenting time with the minor children.”
Granted the authority to place “[r]estrictions on the presence of third parties during
parenting time” under MCL 722.27a(8)(c), the trial court based its decision on the “best
interests” of the children, giving particular emphasis to plaintiff’s (the mother’s) moral
objections to cohabitation, when defendant (the father) claimed that he personally held no
opinion on that concern. The trial court did not base its decision, in whole or in part, on
MCL 750.335, which prohibits “lewd or lascivious cohabitation.” Therefore, this case
does not implicate the constitutionality of MCL 750.335, but rather only raises the
question whether the trial court abused its discretion in restricting the presence of
unrelated members of the opposite sex during parenting time. Brown v Loveman, 260
Mich App 576, 591-592 (2004). The Court of Appeals found no abuse of discretion by
the trial court, and we affirm this determination.
KELLY, J., would remand this case to the trial court for further proceedings.

Answer 2

You would have to look at the exact wording of the decree...

Most typical decrees have no limitation on a parent having sex...

If basic guidelines, child asleep, unaware of the sex, not present in the room, yadda yadda were followed I would think it would have no effect what so ever on a custody agreement..

Use common sense (not so common I know) and legally there should be no problem..

Ex-spouses like to use the children as weapons in an on going battle, to me this sounds like just that...

Answer 3

No, I had sex with my then boyfriend, now husband with my kids in the same house as my children it. Unless you plan on never having sex again as long as you have custody of your child your child will be in he house even if you married this man. Go on with your bad self and ignore the haters.

Answer 4

No way. Child support is exactly what it implies;monetary support to help offset costs incurred raising ones child. This in no way has anything to do with what the resident parent does where or with whom or what, as long as it doesnt affect the well being of the child. Now if he were to move in, this type of arrangement might have an affect on spousal support but thats all. You could get married to this guy and it wouldnt have the slightest affect on your child support.

Answer 5

no as long as Ur are not doing it in front of the child and they have no criminal background it has no barring on tne out come of the custody sit ch, i have been divorced twice and my last marriage we had a child and so i know what's going on don't worry. if u want to talk more about this my email is [e-mail]

Answer 6

Nope. It's called getting on with your life. Sounds like your ex has a knack to try to control you. Have your new boyfriend stalk him some night and beat the crap out of him. That should solve it.

Answer 7

It does not look good I would wait untill the kids are at the other parrents house it is true that you need a life but your children do not need to be exposed to that sort of thing.

Answer 8

Well your ex-husband could always take you back to court if he didn't like your boyfriend. Don't worry about it until your ex said something.

Answer 9

Only if it was written in the divorce degree

Answer 10

no problem