How Living Together Affects Custody of Children From a Prior Marriage

If you and your former spouse agree on custody, the court will normally ratify your agreement without considering the details of how you lead your life. A judge won't know (or necessarily ask) whether one of you is living with another person unless your ex brings it to the judge's attention.

If you and your spouse are battling over custody, however, the traditional advice is to not live with a new partner and to be discreet in your sexual activity, at least until the court makes a decision. This advice applies to both fault and no-fault divorces, as a parent's living arrangement is always admissible in a custody dispute on the theory that a court needs as much information as possible to determine "the best interests of the child."

We use the word "traditional" to describe the "no sex, no living with anyone" advice. This is because many states now have more relaxed legal attitudes toward living together. While we can't say that most judges are enthusiastic about granting custody to a parent who is part of an unmarried couple, judges will not necessarily deny custody to a parent solely because the parent lives with someone else, especially when the new relationship is stable and nurturing. Therefore, the decision to live or not live with someone (other than a platonic roommate) while fighting over custody should be decided situation by situation, state by state. Especially if your former spouse is likely to make an issue of it, you should consult with a family law attorney to find out about local practices and prejudices. For a list of local attorneys, see Nolo's Lawyer Directory.

Types of Child Custody

There are two types of custody in most states—physical and legal. Physical custody is the right to have the child live with you. Legal custody is the right to make important decisions about the child's upbringing—for example, regarding schooling and medical care.

Custody should not be confused with child support. Every parent has an obligation to support his or her children. (For more on the subject, see How Living Together Affects Child Support for Children From a Prior Marriage.) When one parent has physical custody and the other has visitation rights, the parent with visitation rights is usually ordered to pay some child support to the other parent, who is usually deemed to be meeting his or her obligations through the custody itself.

Custody may also be sole or joint. Joint legal custody means that the parents plan jointly for their children's future, as they did before the divorce. Joint physical custody is typically worked out by the parents, taking into consideration things like the parents' and children's schedules and desires, the quality of schools, relationships with friends, and so on. Joint custody doesn't mean that the children must spend six months of each year or half of every week with each parent. In fact, in many states, a judge may award joint legal custody at the same time one parent is named as the primary caretaker of the child and one house as the primary home for the child.

For parents who communicate well and are equally dedicated to raising their children, joint custody can be an ideal situation. In fact, in some states, courts are required to order joint custody unless there is some unusual circumstance. By balancing the power and decision making, both parents are more likely to provide financial support for and maintain close relationships with their children. A potential drawback to joint custody is the possibility that arguments will drag on forever because neither parent has final say. However, family counseling (sometimes called "divorce" or "separation" counseling) can go a long way towards avoiding or working through such problems.

Best Interests of the Child

In all states, child custody and visitation issues are decided according to "the best interests of the child." This means that the judge who hears the case will consider all evidence before deciding who will provide the better home. Although mothers are more often granted physical custody than are fathers, particularly for young children, there is no longer an automatic preference in favor of women. Today, many men win physical custody of their children.

Frequently asked questions about custody and visitation include:

• If I live with a man, can my children be taken from me?

• If my husband is an alcoholic (or a recently recovering alcoholic), will he be able to get custody of (or visitation with) the children?

• I was once arrested for possession of marijuana; does this mean I can't get custody?

• My income comes from Social Security disability and other public programs, while my husband has a well-paying job. Does this mean he'll get custody of the kids?

The answer to all of those questions is, "It depends." The law doesn't say that adultery, smoking marijuana, or even being involved in antisocial conduct means you can't win, or will lose, custody. In addition, the fact that one parent's income is much larger than the other's isn't necessarily a reason the court will use to award the more affluent parent custody. Many factors—not just whether or not you're living with someone else—are related to what is in a child's best interest. The court's decision will normally favor the parent who will best maintain stability in the child's life. The way each parent lives can be an important factor when a court decides custody issues. In any given case, the judge may consider one person's lifestyle to be more in the best interest of the child than the other's.

In a few states, a judge can use a parent's cohabitation to deny custody. For example, an Arkansas court stated "a mother's ongoing relationship was immoral, failed to set a proper example for the children, and resulted in harm to the children." (Nix v. Nix, 706 S.W. 2d 403 (Ark. 1986).) Courts in a few other states have similarly disapproved of cohabitation and have forced a change in custody, especially where the children were aware of their custodial parents' intimate conduct.

In general, however, the bottom line is that the judge, as a human being, will apply his or her own standards and prejudices when deciding which parent gets custody. Some judges don't like unmarried persons living together, even though society no longer considers living together the "no-no" it was 30 years ago.

Custody Issues If You Have Been Divorced for Some Time

Now suppose you have been divorced for some time and have custody of your children. You want to move in with a new partner, but want to be sure this won't give your former spouse legal grounds to challenge your custody of your children.

The question of child custody can always be reexamined by the court. If a judge finds that it's in the best interest of your children to change the custody of your kids to the other parent, then the judge can order this. State law varies as to whether a judge can consider your living with someone to be a negative factor in deciding whether or not custody arrangements should be modified.

Anatomy of a Contested Custody Case

In many places, fighting over custody is no longer as simple as going into court with your arguments at the ready. Now, parents with custody disputes usually must attend court-ordered mediation sessions to try to work out a parenting plan, before they'll be allowed to see a judge. In some places, the mediator will make a report to the judge with a recommendation of how custody should be decided. In others, the mediator simply works with the parents, but doesn't report to the court afterwards.

Some courts may also order an evaluation of the family, which might be performed by a social worker employed by the county or by a private social worker or therapist with training in child custody evaluation. A child custody evaluation will include interviews with both parents and the children, background checks, and sometimes psychological testing.

Once all the mediation and evaluations are completed, you'll then have your day in court. The judge isn't compelled to follow the recommendations of the mediator or evaluator, but as a practical matter most do. If the social worker or mediator recommends that you get custody, you've won more than half the battle. If not, you're at a serious disadvantage, but you can still proceed to the trial, and you may ask the social worker or mediator to come to court to be cross-examined about the report. This is especially important if the report contains factual inaccuracies.

At the trial, the judge may ask your children where they want to live. Some judges ask only older children; other judges never ask any children. Most judges will pay little—if any—attention to the opinion of a child under seven, but will probably respect the wishes of a teenager if the chosen parent is otherwise suitable. Judges also tend to keep brothers and sisters together unless there is a strong reason not to.

Keep in mind that a judge has the power to deny custody to both parents. During a divorce proceeding, a judge need not award custody of the children to either the mother or the father if he or she finds them unfit. Instead, the judge can award custody to a relative, a friend, or even the local juvenile court.

How to Create a Custody Agreement

Even though you may never want to speak to your former spouse or partner again, it is vital for you both to sit down and decide how you will continue to raise your children. Because the two of you know your children best, forming a parenting plan or custody agreement together makes the most sense. Also, it will save you from the risk of a drawn-out court battle.

A very basic custody agreement, Sample Cooperative Custody Agreement, is included here. It is common for custody agreements to be much more detailed, covering when parents will spend time with the children, how to handle holidays, vacations, and birthdays, the role of each parent in the children's education, health care and more. This agreement may serve as a placeholder while you work out the details of a more thorough one.

While some parents can make agreements on their own without outside help, many turn to mediators or family law counselors to help them resolve one or more problem areas.

Negotiating a Custody Agreement

Negotiating a custody agreement that is fair to both you and your former spouse makes great sense. While it may seem impossible, try to put aside your anger and hostility to create a parenting plan that puts your children's best interests first. Choose a setting that is neutral and prepare yourself by writing a list of all the important factors you want to discuss regarding the custody of your children. Obviously, this will include your children's living arrangements, education, medical care, and emotional needs. Listen to all the requests your ex makes and be willing to compromise. If you strongly disagree on a particular issue, set it aside and concentrate on the things you can work out. Often, if a spirit of compromise develops over the course of your negotiations, it will extend to solving even your most difficult problems.

Mediation

If you and the other parent can't arrive at a good agreement yourselves, your next step is to enlist the help of a neutral third party who is skilled in the area of child custody. Family mediators are trained to handle difficult custody and visitation issues. While a mediator will not make a decision for you, they are adept at guiding parents to arriving at their own plan. Many states mandate the use of a mediator to try to solve custody disputes and some even provide mediators at low cost.

Resources on Custody Agreements

Nolo's Essential Guide to Child Custody and Support, by Emily Doskow, provides a road map to the subject of custody and support, including specifics about each state's laws, the factors courts consider when ruling on custody arrangements, what happens when one parent wants to move away with the children, and more.

Also, for more information on child custody in the Divorce and Family Law section of this site