What effect, if any, does a parent’s cohabitation with a new boyfriend or girlfriend have on the parent’s rights to child custody and parenting time?   Judges today certainly view the cohabitation as less significant than did the last generation of judges.  In fact, in most of today’s cases, the cohabitation has virtually no impact on the judge’s child custody and parenting time decisions.

In the late 1990’s, I handled a divorce / child custody case for a father (“Dad”).  After a few months of wrangling, the parties agreed on joint legal custody, with the children residing primarily with their mother (“Mom”).  Dad would have parenting time with the kids every other weekend and two evenings each week.  After the parties had signed off on the agreement but before the final divorce decree and parenting plan were signed and approved by the judge, Dad moved in with his girlfriend.  Mom objected to this, saying it was harmful to the kids to be with Dad overnight if he was cohabiting with a woman out of wedlock.  Mom filed a motion with the court to modify the custody and parenting plan, which had not yet been approved as a final order of the court.

At the court hearing, the fact of my client’s cohabitation with his girlfriend was undisputed.  No evidence was presented, however, as to the specific harm, if any,  the children were suffering by being with Dad overnight while Dad was cohabiting with his girlfriend.  Nevertheless, the judge granted the divorce and ruled that Dad would have no overnight parenting time so long as he was cohabiting with his girlfriend.  The judge’s written ruling did not cite any specific findings or grounds supporting his decision other than his strongly held personal belief that cohabitation out of wedlock was immoral and improper and that he felt it was harmful to children.  The judge told my client in no uncertain terms that he would have overnight parenting time with his children once he moved out of his girlfriend’s residence or married his girlfriend.

I was shocked by this result, as was my client.  My client promptly relieved me of my duties as his attorney, being sure that it was my poor representation of him that resulted in the adverse ruling against him.  Within approximately one year after the conclusion of my involvement in this case, however, I learned of another case very similar to the one I handled in which the same judge issued a virtually identical ruling to the ruling in my case.

In this second case, the mother, Sara Deane Higgins, was cohabiting with her boyfriend, and the judge ruled that she would have no overnight parenting time with her children until she got her own place or married her boyfriend.  Again, the judge made no specific findings supporting his ruling other than citing his personal belief that the cohabitation was harmful to the children.  The mother in that case appealed.

On appeal, the Court of Appeals reversed the trial court’s decision as to child custody and parenting time and remanded the case back to the trial court for a new trial on those issues.  See Higgins v. Higgins, 194 Ariz. 266, 981 P.2d 134, 140 (Ariz. App. 1999).  The Court of Appeals essentially found that it was error for the trial court to find that mother’s cohabitation was per se contrary to the children’s best interests, and that a parent claiming that cohabitation is harmful to children “has the burden of proving it by competent evidence regarding the real-life facts and circumstances of the actual case.”  Id. at 139.

It is important to understand that the Higgins case does NOT say that cohabitation can never be a factor.  In order for cohabitation to be a factor in the court’s decision, however, specific evidence must be presented which convinces the trial judge that the cohabitation is harming the children.  For example, if the father in Higgins had requested and obtained a custody evaluation by an expert witness psychologist, and if the psychologist had conducted an evaluation and reported/testified to the court as to the specific detriment the children were experiencing by witnessing mother’s cohabitation (e.g., bed-wetting in mother’s home but not in father’s home, developing stomach problems or acting-out behaviors in mother’s home but not in father’s), perhaps the judge’s decision citing those specific facts would have been upheld.

It is also important to distinguish Higgins from a case in which the new boyfriend or girlfriend is abusing or harming the children.  Abuse committed by a parent’s paramour or new spouse is clearly a factor which the court can and should consider in making child custody / parenting time decisions and has nothing to do with whether the new relationship is a marriage or out-of-wedlock cohabitation.

In sum, the law in Arizona is that the existence of cohabitation alone is insufficient to support a custody/parenting time order against the cohabiting parent.  There must be more — specific evidence indicating that the cohabitation is  harming the children.  If such evidence is offered and the trial judge finds it persuasive, the judge may rule against the cohabiting parent so long as the judge makes specific factual findings supporting her decision.  In practice, however, this rarely occurs.  In most cases, a parent’s cohabitation with a paramour has virtually no impact on the court’s child custody/parenting time orders.

As a side note, the trial judge who decided Higgins and my case described above was the Honorable David Roberts.   Judge Roberts retired shortly after the Higgins case went up on appeal.  Judge Roberts was a good judge and is a good man, a man of strong moral convictions.  I occasionally see Judge Roberts around town,  and I continue to admire and respect him greatly.

Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.