By complete coincidence, just after I posted earlier this week about restrictions on the custody and visitation rights of gay and lesbian parents, an example of that very thing hit the national news. Carolyn Compton, the mother of a 10 and a 13 year old, and her partner, Page Price, were ordered to separate in order to comply with a provision in Compton's 2011 divorce decree that no unmarried romantic partner could spend the night when the children were present. The judge gave Price 30 days to move out. If she doesn't, the judge could award Compton's ex-husband custody of the children (although no coverage I have seen mentions that). Here is one report that focused on the potential unconstitutionality of the restriction, saying it was ultimately a question for the US Supreme Court.
But as I wrote in my previous post, the Constitution isn't the issue, and Compton is not going to win going down that route. The issue is how the children are doing and what their relationship with Price is like. According to an article in the Dallas Morning News, a "morality clause" banning unmarried overnight romantic partners is standard in several Texas counties. Some accounts focus on the fact that Price and Compton cannot marry, but, as the article I recently published points out, the marital status of the couple should have no significance whatsoever. The focus should be on the children. If a parent remarries and the presence of the spouse is harmful to the children, the fact of the marriage doesn't solve anything and should not absolve the parent from an assessment of whether that parent's choices are good for the children.
For the record, I do believe restrictions on parents' sexual relationships violate their Constitutional rights, but no court in a custody or visitation case has ever ruled in favor of a gay or lesbian parent on Constitutional grounds. Plenty of courts have ruled for gay and lesbian parents by finding that the parent's relationship was having no adverse impact on the children. A few years back, a Tennessee appeals court struck down an automatic provision against the presence of "paramours" (although the court had to do it twice before the trial court would comply).
In my previous post I pointed out that anything a parent does that harms a child should be considered in determining custody and visitation, and that nothing about having a nonmarital partner should be treated differently from any other decision a parent makes. I wouldn't expect Texas to embrace precisely that principle, but it's not too much to expect that an appeals court might require an inquiry, with actual evidence, into the well-being of the children. The couple has made a statement that Price's move will be disruptive and harmful to the children. I can believe it. I hope an appeals court tells the trial judge he has to make an assessment about this family and these children rather than enforce a blanket provision against the presence of unmarried partners. Even in Texas, I believe that's possible.