Leila and Liam divorced. They share physical custody of their two children. Liam has a new girlfriend who has moved in with him. Leila disapproves of their living arrangements, which she claims are against her moral beliefs. She wants to know whether she can prevent Liam from having his girlfriend, a third party, around her children. What will the judge do when encountering this and other third-party custody issues?
The Court will assess if the other party may prevent the children from being with a third person. It will consider whether this action has negatively impacted the children.
In a key Massachusetts case, the Court granted custody to the father; the mother appealed, asking the Court to prohibit the husband from allowing their youngest child to be in the presence of the husband’s new girlfriend, with whom he was cohabiting. [1] The mother argued that her children saw their father living with another woman. He was not married to her. She claimed this exposed them to immoral behavior. She cited to a number of older laws, such as those which once prohibited cohabitation.
The Appeals Court ruled that the child does not need a prohibition from being with the father’s new partner. The court found no evidence that any of the three children were negatively affected. The Court noted: “in the usual case, judges should avoid making moral judgments on the lifestyles of proposed custodial parents, recognizing that such judgments are appropriate only when it can be shown that a parent’s lifestyle has a direct and articulable adverse impact on the child, or where there can be no real dispute in the circumstances of the particular case that the behavior of the custodial parent is related to his or her parenting ability.”[2]
The Appeals Court decided on custody matters between a husband and wife. The wife had an incestuous relationship with her biological father. The Court granted primary custody to the wife, holding that she was the primary caregiver and that the husband exhibited little inclination to take care of the child while they were residing with him. However, the Court also noted the importance of keeping the children’s grandfather away from them. The Court prohibited the mother from allowing the children to have any contact with her father. [3]
“There can be no real dispute that if the wife and [her father] were to engage in an ongoing incestuous relationship to which the minor children were exposed, directly or indirectly, then at some point there would be a direct and articulable adverse impact on the children,” the Court noted. “In these circumstances, it would be error to omit such an essential prophylactic measure to safeguard the well-being of the children, especially one that was already in place and relied on by the judge and other experts at the award of physical custody.” [4]
In a recent decision, the Court recently declined to apply the decision in B.B.V. to the claims of a mother. However, she argued that her children should be kept from the presence of the former au pair. The au pair had an adulterous relationship with the mother’s husband. [5]
The Court stated: “we reject the mother’s argument that there are “compelling” parallels between this case and B.B.V. v. B.S.V…where we imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V ., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between their mother and grandfather, and we acknowledged that such exposure ‘would be a direct and articulable adverse impact on the children.’… In this case, comparable evidence of a ‘direct and articulable adverse impact on the children’ as a result of the father’s relationship with the former au pair is noticeably lacking.” [6]
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[1] Fort v. Fort, 12 Mass. App. Ct. 411 (1981).
[2] Id., at 415.
[3] B.B.V. v. B.S.V., 68 Mass. App. Ct. 12 (2006).
[4] Id., at 20.
[5] Jankovich v. Jankovich, 88 Mass. App. Ct. 1111 (2015).
[6] Id., at 3.