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Judge orders couple to separate or lose custody.

New Jersey parents may be interested to hear of a recent child custody ruling. The judge ruled that a lesbian couple could not continue to live together if one of them wanted to maintain custody of her children. The decision is because the partners were not married; and therefore could have ramifications for all couples, regardless of sexual orientation.

When the woman and her husband divorced, the divorce decree included what is known as a "morality clause." In this case, the morality clause included a provision that states that neither parent may have unrelated overnight guests while the child(ren) of the marriage are in the home. These are common clauses in conservative states, where it is believed that children may be harmed by seeing a parent cohabitating with a sexual partner outside the sanctity of marriage.

This case received media attention because Texas law prohibits the couple from marrying, and therefore penalizes the woman in a way that can be avoided by heterosexual couples. However, there have been recent cases where similar clauses were invoked against other couples. In 2012, an Alabama judge removed children from a woman's custody because her fiance was living with her before the marriage occurred. On appeal, the court upheld the ruling, claiming that a parent's sexual behavior may be used to determine the person's moral character, which is relevant in a custody determination.

In a child custody dispute, a family law attorney may be able to help by negotiating a resolution with the other parent. When it is not possible to reach a resolution, an attorney may be able to help argue why granting custody to a client is in the best interests of the children.

Source: Washington Post, "Texas judge says lesbian couple can’t cohabitate, cites morality clause in divorce papers", May 21, 2013

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