Recently, a Texas judge ordered a lesbian couple to separate from their co-habitation arrangement, or one of the two would lose custody of her children.

Our Birmingham child custody lawyers understand that the reason behind the decision isn’t that they are lesbian. It’s that they are not married. Of course, in Texas, as in Alabama, homosexual couples are not able to get married, so the case has kicked up a firestorm among gay rights advocates.

It’s worth noting, however, that any unmarried, sexual relationship has the potential to affect your child custody arrangement. It involves what are sometimes referred to as "morality" or "paramour" clauses that are written into divorce agreements involving children.

Typically, they are put in place to prevent cohabitation or overnight visits of the opposite sex while that parent has the children. Although the language is typically extended to "the opposite sex," this case shows that courts have been known to extend that definition to same-sex pairings if one parent is found to be homosexual.

Of course, enforcement of these types of agreements are a challenge because it can be quite difficult to obtain evidence that one party has had an overnight guest in violation of the agreement. However, it gets easier if the parent is violating the order by way of cohabitation.

Usually, it’s seen as more severe when one party has multiple overnight guests in a relatively short period of time, but a violation of any kind still has the potential to affect the arrangement.

Alabama is historically a more conservative state, and as such, the courts have been more apt to inject morality into the argument.

Just last year, in the case of DMPCP v. TJC, Jr., the Alabama Court of Civil Appeals held that it was perfectly fine to deny custody to a woman who was living with a man who was her fiance, though they weren’t yet married. The court also took into account that it believed her to be less than sufficiently religious.

The father’s lawyer questioned the mother on the stand, asking whether she believed that living with her fiance sent the wrong message to her child, as she wasn’t yet married, and also questioning how often she took the child to church.

In its December 2012 decision, the state appellate court held that the court may, during an initial custody determination, consider a parent’s sexual conduct as it pertains to that parent’s character. The court went even a step further in saying that the other side needn’t show that the conduct has been detrimental to the child – only that it calls the parent’s character into question.

(It may be worth noting that the father in this case had been arrested for sexual abuse against the mother’s minor daughter from another marriage, although he was later acquitted in criminal court.)

And yet, other elements that came into play were things such as whether the mother fixed breakfast for the child each day (she said that at age 6, he sometimes preferred to do it for himself). Other evidence that was presented included the opinion of the child’s first-grade teacher, who indicated that while the mother was very loving, she believed she could do more to bring the child up in a church environment.

So as you can see, perception in these cases is sometimes very important. In that courtroom, your lawyer will be your best advocate.

If you are dealing with child-custody issues, contact Birmingham Family Law Attorney Steven Eversole at (866) 831-5292.

Additional Resources:

Judge tells lesbian couple to separate – or lose kids, May 23, 2013, By Irin Carmon, Salon.com

DMPCP v. TJC, Jr., October Term, 2012-2013, Appeal from Covington Circuit Court, Alabama Court of Civil Appeals

More Blog Entries:

Birmingham Child Custody Evaluation Preparation Tips, May 8, 2013, Birmingham Child Custody Lawyer Blog