Law.com had an article about a case from Texas (Peck v. Peck), where a Texas appellate court upheld a ruling that an ex-spouse could not have a boy- or girlfriend stay overnight in the house when the child was present. Purportedly the appellate decision was an affirmation of the lower courts' ability to interpret the "best interests of the child."
But this sounds like a very wrong decision, both by law and by policy.
I'm away from my Con Law textbook so I can't cite the specific case, but there was a Supreme Court decision on the rights of grandparents – which basically said they have no rights to the child, unless there has been some defect to the parenting. (And keeping a kid away from the grandparent does not count as a defect.) Obviously a jointly-custodial ex-spouse does have more rights to the child than a grandparent would, but the take-away from that case seems to be that the parent with custody of the child has a wide degree of latitude to make decisions for the child without risking being overruled. I don't see why that latitude wouldn't also be afforded to the parent with actual physical custody on a particular day. Physical custody usually implies a fitness on the part of the parent, and unless the boy- or girlfriend was an abuser or otherwise engaging in criminal behavior, the decision to actively date this person does not equate to a defect in parenting.
Furthermore, to expose that decision to either the court's – or the ex-spouse's - scrutiny seems to fly in the face of Lawrence v. Texas, a decision that seemed to be very clear on getting the government out of the bedroom. But that's exactly what the government is doing, when it uses custody proceedings to tell an ex-spouse whom he or she may sleep with and when. It also gives the other ex-spouse a degree of control over someone else's private life that hasn't been permitted since slavery. This is not to say that the other ex could overrule a marriage – although by this court's reasoning, why couldn't it? – but that this veto power over dating relationships gives an individual a tremendous amount of power over another, a kind of dominion over another's autonomy which cannot be justified in a society of free individuals. Even within the bounds of a marriage there are limits to how much control one spouse can have over the other (eg, marital rape is still rape), and after its dissolution there can be even less. But that's not what these Texas courts seem to be saying. They seem to be saying that by virtue of having been married to and having born a kid with a person with whom a marriage is no longer possible, the ex-spouse needs to forfeit control of their private lives and personal happiness to this other person for up to the next 18 years.
As a policy matter, this decision can't yield a good result either. Particularly for those people who think having an intact family is a tantamount policy goal. The first marriage is gone, but the obstacle to date freely prevents new family units from being formed. Sure, not all second marriages work out well for the kids or parents involved, but sometimes that's because people don't know what they're getting into. Allowing for families to naturally grow into cohesive units seems to be in everyone's interest – but having to kick people out of the house right after dinner hardly seems conducive to that goal.
This is obviously a matter of Texas law and the Texas courts might work it out on their own, but Texas law must yield where US law provides. And this seems like another instance – like Lawrence – where Texan legal hegemony comes into conflict with the rights afforded to individuals by the national Constitution.
Comments (4)
Actually in at least some states, marital rape does not exist as a matter of law. In at least Florida, a man cannot be charged with the sexual assault of his wife. I suspect this is true in many states. Please don't take this to be a comment in support of this law, I don't actually have enough knowledge of the underlying reasoning to support or oppose it.
Posted by Jon | August 7, 2005 12:35 PM
Posted on August 7, 2005 12:35
I think you're right about marital rape not being a crime in several states, although I think that's the case in (hopefully) increasingly few states.
But it does make the point: are spouses to be property, owned and controlled by the other spouse? Or is a marriage a partnership of equals? I guess if you really believe the former is better, then the Texas ruling shouldn't trouble you.
(It is interesting to note that it does appear to treat both sexes equally, although I think this kind of veto power is most likely to be used by abusive ex-spouses, which typically are men and would thus leave women to bear the impact of this ruling unequally.)
On the other hand, for those who think that marriages should be the unification of two equal individuals, how can you support them becoming unequal once they get divorced?
(And by "you," I of course don't mean you, Jon. I mean it in a general sense.)
Posted by Cathy | August 7, 2005 4:46 PM
Posted on August 7, 2005 16:46
I was very disturbed about the ruling when I read the law.com article this morning. I think it is very bad from a policy perspective. This will give vindictive people a new weapon to control the lives of their ex-spouses - one that continues the age-old tradition of using the kids as pawns in the war between the parents. It also allows one spouse to impose his or her moral/religious views on the other spouse. However, as I was reading it, it brought to mind those cases where the custodial parent wants to move out of state to take a new job or something and the other spouse opposes the move. In those cases (I think) the court can block the move if it determines it will be detrimental to the child (the standard probably varies from state to state). However, I would think that blocking someone from moving out of state would violate his/her fundamental constitutional right to travel. So I tried to think what the justification would be for this and I figure it must be that there is a difference between ordering someone not to move out-of-state and making it a condition of their custodial rights. In that case, the court must consider whether there will be a detriment to the child and must balance that against the parent's right.
The overnight guest case seems to present a similar issue. The court is not ordering the parent not to have an overnight guest. It is saying, if you want to have custody of your child, and, if having an overnight guest will be detrimental to the child, you can't do it while the child is there. I think this would be constitutionally permissible, but, then again, I haven't actually done any research on this issue.
However, it raises another question in my mind: what about the right to practice a particular religion. For example, let's say one parent is muslim and the other is christian. What if the christian parent objects to the muslim parent praying to mecca six times a day (or whatever they do) when the child is over and argues that this is detrimental to the child for some reason (maybe the child associates the muslim parent's religious practices with extremism and terrorism and experiences psycholocical stress as a result). Can the court order the parent not to pray to mecca while the child is there? I would think that would violate the parents First Amendment right. So why wouldn't the same principle apply to the right to travel (in the case of moving out of state) or the right to privacy (in the case of overnight guests). It certainly is an interesting puzzle.
Posted by Lawgirl | August 8, 2005 11:48 AM
Posted on August 8, 2005 11:48
One big difference between the new dating partner scenario and moving out of state is that the latter interferes with the OTHER parent's custodial rights vis a vis the lack of daily face time such a move might result in for the other parent.
But for situations like that, only when the parents' new lives are incompatible should the court step in to decide what to do "in the child's best interests." Otherwise, as long as both parents are fit and there's not a reduction of one's rights caused by the action of the other - and no matter what the jilted ex feels, the ex-spouse's dating is of no legal consequence to him or her - the court has no business stepping in to "resolve" this non-conflict.
Posted by Cathy | August 8, 2005 5:19 PM
Posted on August 8, 2005 17:19