Most parents feel it is important to impart morals and values on their children even in the time they spend apart from them. Thus, when custody and visitation rights are being decided, some divorcing couples opt to include a morality clause in the uncontested divorce settlement agreement.
Morality clauses are typically drafted by attorneys to prohibit cohabitation or overnight visits with the opposite sex until the parent engaging in the activity becomes remarried. Less restrictive, are morality clauses that prohibit overnight visits with the opposite sex only when the parties’ children are present in the home. This is less of an issue for the primary physical custodian as they will have the children with them the majority of the time. A morality clause may also prohibit the parents from introducing the children to new boyfriends and girlfriends for a certain period of time such as six-months or a year following a divorce. However, morality clauses can be even more elaborate and tailored to fit the needs of the parties and contain a combination of “rules of conduct” that the parties must follow.
In some instances, where same-sex relationships are an issue, they clauses are drafted to cover any non-relative overnight visits. When the clause addresses issues such as these, the parents should be aware that the other party will often want the clause to apply to both parents. But not always, for example one spouse may want the divorce bad enough, or feel guilty about an extra-marital affair and will agree to a one-sided morality clause. However, it has been our experience that the person asking for the morality clause will usually have no problem with it also applying to them. It has also been our experience that the other party will usually agree to a reasonable morality clause. As with most things in an uncontested divorce, the issue can be negotiated and settled.
If one of the parents subject to the morality clause has overnight guests of the opposite sex (or same sex, if applicable) not related by blood or marriage then that parent may be found to be in contempt of the final divorce order and parenting plan. However, even with the best carefully drafted morality clause, enforcement of the clause can sometimes be difficult. First, the more reasonable the requirements of the morality clause, the easier they will be to enforce. Obtaining evidence that the morality clause has been violated is usually the main obstacle, since it may be hard to prove that your ex-spouse had a visit by an overnight guest. With older children, the court may even feel that it is necessary to appoint a Guardian Ad Litem (GAL) to speak with the children to help the court determine the extent of the harm the contempt has had on the children. And even with proof the morality clause was violated, the court may feel that a finding that some damage was caused to the child due to the overnight visits. In the event a motion for contempt is filed by the non-custodial parent, the morality clause language will ultimately be subject to interpretation by the judge that hears the resulting contempt action.
Drugs and Alcohol Use
An important and often necessary use of a a morality clause can also be used to prohibit the use of alcoholic beverages and/or illegal drugs during periods of custody with the child. Evidence of alcohol abuse and drug use may be apparent due to arrest records for DUI, public drunkenness, or for the purchase of illegal drugs (controlled substances). Or it may be my subtle such as erratic behavior, a disheveled appearance and red eyes, odors related to alcohol and drug use, or verbal and written statements from friends and family that have witnessed the use. To monitor contempt of this clause, if one parent believes that the other has violated the morality clause, they may request a drug or alcohol test. The parent requesting the test must usually pay for it and the alleged offending party must take the test within twenty-four (24) hours. If the parent accused of abusing alcohol or using illegal drugs repeatedly fails to take the test upon request, the court may view this as an admission of guilt. In addition, the court can order its own drug tests be taken within twenty-four (24) hours, and the party will be in contempt of court if they do not take the tests. If the tests are positive for drugs or alcohol, the non-offending parent may motion the court to modify custody if he or she believes that the child is in danger due to the alcohol and/or drug abuse. Also, the court will often appoint a Guardian Ad Litem (GAL) to speak with the children to help the court determine the extent of the harm the abuse of alcohol and drug use has had on the children.
Other Topics for Morality Clauses
While not common, the parties may agree that the children must attend a church, temple synagogue or take part in other religious activities when in the care of the other party. Also, the parties may agree that the children not be kept in the presence of other family members that may have a history of criminal activities such as drug use, child abuse or violence. The parties may even agree that the children only be allowed to what PG-13, PG and G rated moves, and not allowed to view any R rated moves. Depending on the circumstances and the personal feelings of the parties, these and other issues not listed here that may have an effect on the morals and sensibilities of the children may be included in a parenting plan and divorce settlement.
Enforcement of Morality Clauses
The penalty for contempt, may include reduced visitation time, attorney’s fees or significant penalties and consequences if the party does violate the morality clause again in the future. Upon reviewing the case, the actual harm to the children and frequency of the violation of the morality clause will usually be significant factors in the court’s decision. Also, the reasonableness of the morality clause to be enforced, from the view point of the court will be an important factor in any final decision.
If there are no other problems, other than the violation of the morality clause, it may be best to have an experienced divorce and family law attorney contact the other parent to see if they will voluntarily stop the behavior with the treat of a contempt action looming. If there are other problems in addition to the violation of the morality clause, it may be preferable to court for contempt and file a modification to resolve all the issues at once.
If you are needing help in an uncontested divorce and the inclusion of a morality clause, call us at 770-609-1247 to discuss how we can assist you.