This past week a Texas judge ruled that a lesbian couple could not continue to cohabitate because of a morality clause in one of the partner’s divorce decree. A morality clause is essentially a provision in a settlement agreement, divorce decree or court order that precludes either parent from having a romantic partner spend the night while the children are present. The clause came into play when the partner’s ex-husband filed an action to enforce the provision and modify their custody arrangement. After a hearing in the matter, the judge ruled in the husband’s favor and ordered the wife’s partner to move out of the home that they shared with the wife’s two daughters.
Morality clauses are common in Texas divorce cases and in other states, although it is not typically included in a divorce decree in the District of Columbia or Maryland unless the parties have contracted for one in a parenting or settlement agreement. While the purpose of a morality clause is supposedly to prevent a parent from exposing the children to a “revolving door” of new boyfriends/girlfriends, what it often actually does is create serious problems for a divorced parent in forming new relationships long into the future. Here, the morality clause allowed overnights only once the new couple was married which is a virtual impossibility for them under Texas law as it currently stands.
In handing down his ruling, Judge John Roach, Jr. stated that the morality clause is a “general provision for the benefit of the children” and it was not written to specifically target homosexual couples. While that may be true, it is clear that it has much more serious ramifications for divorced gay or lesbian couples than their straight counterparts as Texas does not allow same-sex couples to marry. The implications stretch even further when a divorced lesbian or gay individual moves to another state that does not recognize or allow same-sex marriage and will also enforce any morality provision under the full faith and credit clause of the US Constitution.
The morality clause also seems to have constitutional implications affecting individuals’ substantive due process rights. In this instance, the clause affects the ex-wife’s ability to engage in an interpersonal relationship in a different way than her ex-husband. For example, the ex-husband could get out from under the restriction if he was to marry his new girlfriend; however, at this time, the wife would never be able to marry her partner in Texas. Such disparity raises questions of equal protection under the law and interferes with the mother’s right to raise her children as she sees fit – a liberty interest that the Supreme Court has placed great emphasis on and value in.
The couple is considering whether to file an appeal. In the meantime, they are complying with the order and the non-parent partner will move out while they consider their legal options.