Just Molly and Me and Baby Makes Three - Or Does It? Child Custody and the Live-In Lover: An Empirical Study

Abstract

How do judges confronted with a parent living with a person of opposite sex, outside of marriage, view such a relationship when child custody is at issue? Can a mother continue living with her boyfriend under same roof as her children when a father seeks custody? Is a child adversely affected by a parent living in open and continuous cohabitation? When custody is an issue, do attorneys counsel cohabiting parents against continuing their relationships with their lovers? Do regional moral values or an individual judge's personal values have a disproportionate effect on outcome of a custody dispute? What factors do judges consider when making custody awards? Many of these questions arise in cases involving custody disputes when a parent cohabits with a lover. This Article will analyze how attorneys advise cohabiting parents and how courts confronted with a mother or a father living with a person other than their spouse without benefit of marriage, or with a parent who commits adultery on one or two isolated occasions, resolve such custody disputes.As a result of enormous increase in number of divorces in United States, judges are confronted with more custody litigation than ever before. In 1970s, number of divorces doubled, surpassing one million per year. During 1980s, family breakups occurred at a rate of 1.2 million per year. Recent projections indicate that 51.6% of present marriages will eventually end in divorce. Other predictions suggest that divorce rate may reach an even higher level. Because one half of divorcing couples have children, number of children involved in divorce has more than tripled in past two decades. Recent census data show that over one in four children, representing 15.3 million children nationally, live in single parent homes.Society has gone to great lengths to protect and promote integrity of traditional family. To this end, children are removed from loving and caring parents who cohabit with lovers. Some courts have removed children from a cohabiting parent because of fear of potential harm to them. Other courts have used their power to modify custody determinations in order to punish a parent for their moral indiscretions. A review of appellate decisions involving custody disputes shows that mothers who live with a lover have a significantly greater chance of losing custody of their children than do fathers in a similar situation. The fact that divorce creates financial hardship for many women may lead them to choose to live with a man for financial security.Do courts exercise a double standard, being more forgiving of a father's adulterous activity than that of a mother's? Is society more forgiving of a man's moral shortcomings than a woman's? It is extremely rare for a court to remove children from a parent who lives in open cohabitation based on testimony of an expert who articulates specific, concrete evidence of harm to child. Part of problem lies in fact that judges hearing custody cases are given wide discretionary authority to interpret the best interest of child.The empirical data contained in this Article is submitted to serve as a backdrop for purposes of elaboration and comparison. Eighty-one attorneys from across country were surveyed to elicit their opinions on these and other questions relating to child custody. The attorneys surveyed have litigated custody cases in a majority of states in this nation and their responses are compared by region. The responses of male and female attorneys are tabulated and compared, and demonstrate a statistical significance between gender of lawyers and their responses to many of questions in survey. Additionally, responses are compared and contrasted by ages of participating attorneys. Cases in area of child custody are analyzed by dividing them into two categories: first, per se category and second, nexus between a parent's behavior and effect on child. Finally, a model statute addressing factors a court should consider in adjudicating a custody dispute is presented.