The May Firm

This article is reprinted with permission from the August 1, 2005 issue of Texas Lawyer. © 2005, Texas Lawyer. For subscription information, contact Texas Lawyer, 1412 Main St., Suite 1300, Dallas, TX 75202 . 214-744-7701 . 800-456-5484 ext.701 . www.texaslawyer.com

Morals Court?
Justices OK Order Restricing Who Can Spend the Night at Divorced Parents’ Homes - by John Council

When a couple divorces, a family court judge divides their property and handles child custody issues. Now the judge can also restrict who spends the night at a divorced parent’s home when the parent’s child is there.

In a case of first impression that several family law attorneys say will have a broad impact on custody disputes, Dallas’ 5th court of Appeals ruled in Peck v. Peck that it’s within a trial court’s discretion to ban a parent’s bed partner, at least when the child is staying with that parent. The ruling reaf firms a trial court’s power to issue such permanent injunctions that are aimed at protecting “the best interest of the child.”

The July 13 opinion concerns Michael Peck and Pamela Peck, who filed for divorce in Collin County. The final order signed by visiting Judge John L. McCraw permanently enjoined both parents from having a person of the opposite sex stay overnight while the parent is “in possession of” the couple’s 9-year-old son, according to the opinion. Michael Peck appealed the order to the 5th court, challenging the injunction, among other things.

Pamela Peck testified at trial that, because Michael Peck and his girlfriend are not married, she did not think it was in her son’s best interest for him to spend the night with his dad and the girlfriend present in the same residence, according to the 5th court opinion. The trial court also found that Michael Peck had exposed the child to “several dif ferent women in dating relationships,” according to the opinion.

But Michael Peck testified that he was in a stable, monogamous relationship with a recently divorced woman. He also testified that this relationship was beneficial to the child and was in the child’s best interest because “it provides him with a family unit.”

The 5th court reviewed the matter under an abuse-of-discretion standard. It found that the trial judge did not abuse his discretion in issuing the permanent injunction that restricts who can spend the night at a parent’s house during a child’s visit as long as the judge’s decision was based on “the best interest of the child.”

“We are unaware of any legal authority that would compel the trial court to rule dif ferently on this issue,” wrote Justice Kerry FitzGerald, who was joined by Justices Carolyn Wright and David L. Bridges.

The parents disagreed on what was in the best interest of the child in this matter. “[T]he trial court was charged with making the decision based upon that testimony, but also based upon his experience with [an] understanding of the individuals involved and their circumstances,” FitzGerald wrote.

The 5th court was unwilling to over turn the trial judge’s order because he has a better feeling for the “forces, powers and influences” surrounding the injunction by obser ving the demeanor and personality of the witnesses.

Dallas solo Georganna Simpson, who represents Michael Peck, says her client will ask the 5th court for a rehearing. Simpson is unhappy with the appellate ruling and what trial courts may do in the future based on Peck.

“The trial court was just making a morality judgment,” Simpson says. “This opinion [has] many ramifications.”

She believes that trial judges will now be free to make rulings based on the best interest of the child that are not necessarily related to evidence presented to the court.

“Any parent can say, ‘I don’t think it is in the child’s best interest that . . .’ ” Simpson says. “And if the court says it has a feeling, [it can] fill in the blank: go to the Catholic Church, go to Rangers baseball games. . . .”

Michelle MayBut Dallas solo Michelle May, who represents Pamela Peck, says the 5th court was just reaf firming a power that trial judges already had — making decisions based solely on what’s in the best interest of the child.

“The Dallas appeals court has pretty much laid it down that, if it’s in the best interest of the child, the [trial] court can do it,” May says.

And morals and community values likely figured into the trial judge’s decision, May says.

“I think that the moralistic issue of it is determined by each individual community. Collin County is a very conser vative community and has very conser vative citizens, and the judges there have values that reflect the citizens,” May says. “The moralistic issue that was the bottom line of the Peck case might have been dif ferent if it had been tried in Travis County.”

In fact, two Plano divorce attorneys say it is common for Collin County trial judges to issue permanent injunctions on this issue.

McCraw declines to comment.

Morality Judgment?
Trial judges often issue temporary restraining orders restricting who both parents may spend the night with while they have custody of the child. But after the divorce decree is issued, it’s rare that a judge makes that restriction permanent, four family law practitioners say.

Usually, a trial judge only issuesa permanent injunction against aparent if he or she has displayed behavior that may harm the child, such as criminal conduct or drug use.

Family law practitioners are abuzz about Peck. Family court Judge Marilea Lewis says she expects the issue will come before her more often in custody disputes.

“Cer tainly it is controversial,” says Lewis, who presides in Dallas’ 330th District court. “And I do anticipate that we’ll see many dif ferent evaluations. People are going to present it many dif ferent ways, and it will be quite a hot topic for a time.” Four attorneys who handle divorce cases are split evenly over whether the 5th court decided Peck properly. Two believe the opinion goes too far by allowing the subjective morality of a judge to influence custody decisions, while two others say it’s never a problem for a judge to err on the side of protecting a child when making a ruling on a permanent injunction. Dallas solo Darlene Ewing says the decision may have implications that go beyond whom a divorced parent can sleep with when he or she has custody of the child. “Can you tell the parent that you’re permanently enjoined from taking a child to an R-rated movie?” Ewing asks. “Where does it stop?” “So you have some judge with his own set of morals parenting your child by his morals,” Ewing says. “What happened to the right of parents to raise their child as they see fit as long as they are not abusing them or mistreating them?” But for judges — and children — the decision is a good one, says Brian Webb, a par tner in Dallas’ Webb & Ackels. “From the judge’s standpoint, where the issue is raised, where is the harm in telling [parents] who they can’t be around at night?” Webb asks. “If you’re going to make a mistake in a case involving a child, make a mistake in the child’s favor.” Brad LaMorgese, a shareholder in Dallas’ Cooper & Scully, doesn’t veiw the permanent injunction in Peck as that restrictive. After all, it only limits a parent from sleeping with a romantic par tner “while in possession of the child,” he says.

“Essentially this injunction cuts out the live-in romantic par tner,” LaMorgese says. “While this might be dif ficult to accept for a parent attempting to establish a post-divorce love life, the injunction provides stability for the child of a recently fractured family.”

Two law school professors who teach family law have more neutral views on Peck.

Christine Szaj, associate dean for administration at Southern Methodist University Dedman School of Law, says it may not be a great idea to issue permanent injunctions related to parents’ romantic par tners. After all, a 9-year-old doesn’t stay 9 years old forever and can grow to accept a parent’s new love interest.

“We’re almost setting the stage for more custody disputes in this case,” says Szaj, who teaches a course on children and the law.

Lines often become blurred when judges try to interpret what’s in the best interest of the child, she says.

“I think we’re stuck with a slippery best interest of the child [standard], one that we apply the best we can,” Szaj says. “I’m not saying I necessarily agree with this. I just don’t have a better solution to this.”

Jack Sampson, a family law professor at the University of Texas School of Law, says parents are often given the ability to modify their custody arrangements by agreement in their divorce decrees. If they have major problems with those conditions in the future that they can’t resolve themselves, they can always go back to the trial court.

“And the State Bar [of Texas] and the Family Law Section and the lawyers that practice family law have instituted a regulatory device to keep the par ties from objecting to the conditions,” Sampson says. “It’s called attorneys’ fees.”
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