Divorce Decree Forbidding Overnight Guests: Is an Occupant a Guest?

A divorce decree provision that forbids “overnight guests of the opposite sex” during parenting time is inviting a trip back to court sooner or later. Ordinarily, having a boyfriend or girlfriend move in so that he or she would be an “occupant” rather than a “guest” would probably not go over well with a judge. But this would certainly depend on the judge and the specific circumstances of the case.

One fact that might influence a judge to accept a boyfriend as an “occupant” would be if the children were allowed enough time for the children to become comfortable with him. Another factor might include the children’s ages, because typically we see these kinds of provisions when the children are pre-teens or younger. Family court judges have to be realists; they recognize, usually, that by the time our children are in high school, they are not as sensitive to this sort of situation. The children themselves, and their special needs, if any, will always be considered first of all. If such a provision was put into the decree because it has already been an issue for the children, it is far less likely that a court would take a relaxed view of the “occupant” approach. Obviously, if the boyfriend or girlfriend personally has issues that cause problems for the children, the judge would not even need to rely on the decree to enter an order keeping him away.

Cases like these can be bitter; divorce judgment provisions such as the example here are sometimes put in at the request of divorcing spouses as revenge for real or imagined infidelity. When that anger is still alive and strong, the move-in of an “occupant” can lead to the other parent making a motion for a change in custody in his or her favor, based on the claim of a violation of the decree. Going into court in a case like this without an experienced divorce lawyer could be a serious disadvantage, especially when the other side does have an attorney.

There is a way around this provision, and that is marriage. It is very doubtful that any family court judge would use this provision to penalize a parent for exercising their constitutional right to re-marry. Furthermore, depending on their reasons for preferring cohabitation over marriage, single parents should consider the possibility that a move-in might not be in the best interests of the children. If there is a reason other than wanting to be free to dissolve a relationship quickly and without the property woes involved in divorce, fine. However, if a quick escape or unsureness about the relationship is the motivation for a move-in rather than a marriage, parents should consider the effects a break up would have on the children. Just because the other person is not a traditional parent of the children does not mean that losing another adult won't have a detrimental effect. Sometimes, the best thing for the children might be waiting to move in together until the relationship is more seasoned and stable.