When I was practicing family law, I sometimes included “morality clauses” in the divorce decrees that I drafted. This is a clause prohibiting either parent, during their periods of possession of the child/ren, from allowing an unmarried adult who is not a family member, and with whom that parent has a romantic or dating relationship, from staying overnight.

I was never proud of including such a clause, and I hated calling it a “morality” clause. I saw situations where it was most likely necessary to protect the child/ren, though, usually where one parent had, after separation from the other parent, become a, ahem, player. The idea was to shield the child/ren from that parent’s dating life until that parent was ready to get hitched again, and the other parent usually had to accept a similar restriction. While I thought it was overkill in most cases, it seemed necessary in a few.

Here’s the thing, though: it applies to unmarried adults who are dating a parent. The morality clause is moot if the parent marries the person, so the restriction is not permanent……..provided the parent can legally marry the person they are dating.

See where this is going?

What happens if the parent is in a same-sex relationship? The courts of Texas are always ready to answer questions like that in the most restrictive and invasive way possible:

Carolyn Compton is in a three year-old relationship with a woman. According to Compton’s partner Page Price, Compton’s ex-husband rarely sees their two children and was also once charged with stalking Compton, a felony, although he eventually plead to a misdemeanor charge of criminal trespassing.

And yet, thanks to a Texas judge, Compton could lose custody of her children because she has the audacity to live with the woman she loves.

According to Price, Judge John Roach, a Republican who presides over a state trial court in McKinney, Texas, placed a so-called “morality clause” in Compton’s divorce papers. This clause forbids Compton having a person that she is not related to “by blood or marriage” at her home past 9pm when her children are present. Since Texas will not allow Compton to marry her partner, this means that she effectively cannot live with her partner so long as she retains custody over her children. Invoking the “morality clause,” Judge Roach gave Price 30 days to move out of Compton’s home.

Ah, Texas. Where it’s better for a parent to be a convicted criminal than to be gay.

Price posted about the judge’s ruling on Facebook last week, writing that the judge placed the clause in the divorce papers because he didn’t like Compton’s “lifestyle.”

“Our children are all happy and well adjusted. By his enforcement, being that we cannot marry in this state, I have been ordered to move out of my home,” Price wrote.

To be fair, much of the state has emerged from whatever mass bigotry led to the 2005 constitutional amendment banning same-sex marriage, but it hasn’t reached wide segments of the judiciary yet. State law allows district judges to make custody orders consistent with the “best interest of the child,” which is often whatever the district judge says it is, and which appellate judges view as findings of fact that they rarely question.

Few, if any, reported cases have addressed the enforceability of morality clauses. A Texas appellate court took a moment recently to dismiss a dad’s claim that a morality clause restricting him, but not his ex-wife, violated the Equal Protection Clause. Roberts v. Roberts, No. 04-11-00554-CV, opinion (Tex. App.—San Antonio, May 1, 2013).

As far as I know, the purpose of morality clauses is to protect kids from confusion if a parent starts dating after a divorce by trying to shield them from all but the most serious relationships. That this is still called “morality” reflects an origin in an earlier era. A blogger at the site Mr. Custody Coach offers a good take on the nature and effect of morality clauses today:

On the surface, the thought is about protecting the children from a revolving door of romantic partners from being introduced to the children, only to have them disappear from their lives in short order. It goes without saying that this would be detrimental to the children’s psyche, though how much and to what extent is hard to measure. However, there are far too many loopholes in even the tightest of morality clauses. Further, they simply can’t stop the children from being introduced to new significant others in a parent’s life.

There are some recent trends in child parenting agreements/orders that really should be avoided. In fact, morality clauses should be avoided, in our opinion, due to the reality that they are quite difficult to enforce and don’t afford children the “protection” that is intended.

First, the use of a parent’s sexual behavior to restrict visitation or withhold custody, even when there is no evidence that such behavior has any effect on the child. Children have close friends. Adults have close friends. It stands to reason that these friends may come in go in any of our lives. It seems counter-intuitive that a new adult “close friend” should be restricted from introduction or noticed as a part of a parent’s life. In fact, it may introduce suspicion to the children about the new person in their parent’s life without any real understanding of why it’s necessary, which can be detrimental in its own right.

Secondly, the use of restraining orders nowadays is used to introduce the family court’s opinion regarding the child’s best interests when in reality – it’s a tool to circumvent the parent’s judgments about what’s best for their child.

In each situation, the court is able to impose its view of moral behavior with the force of law. With all of the other intrusions that divorce and custody litigation affords the family court – this one is another that is an alarming trend. Further, it has been our experience that those initiating such clauses are doing so simply to control the life of their ex-partner and are even the person who violates the clauses that they are trying to impose on the other party

It is undoubtedly important to deal carefully with introducing a child to a new significant other, but the assumption of the standard morality clause is that the S/O could become a spouse. For Compton and her partner, this restriction could apply for the rest of their lives. A mostly-absentee dad seems to have gotten an assist from a regressive judge, and now the children may have to live in a single-parent household.

I hope the opponents of marriage equality are proud of themselves.

If we’re really going to talk about “morality” in a post-divorce scenario, as seen through the eyes of a conservative Republican state judge, I feel like I ought to break out the big guns:

I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery.

Matthew 19:9 (NIV)

Just once, I’d like to see a sanctimonious parent in a post-divorce custody proceeding have that thrown in their face.

Of course, there are those who want to ban divorce entirely, forcing children to live with two miserable parents trapped in an unhappy marriage for the children’s own good because Jesus, so maybe I should keep the in-context Bible-quoting to a minimum.