Michigan case law update: Unmarried overnight guests

On November 23, 2010, the Michigan Court of Appeals released the unpublished case of White v White, COA No. 293976, originating in Macomb County Circuit Court.

Following the Judgment of Divorce, the wife appealed a provision in the judgment which prohibited the parties from "entertain[ing] unrelated members of the opposite sex overnight while the children are in their care." This provision was not agreed upon by the parties, but rather, was ordered by the trial court. The court reasoned that "it's morally important for the children to develop in an environment that's conducive to marriage." The court further added that, "if you don't want to teach your children morals, I will."

The Court of Appeals reversed the trial court's decision and determined that "sexual relations outside of marriage, even when adulterous, are not necessarily probative of how a person will interact with or raise a child, and unmarried cohabitation, in itself 'is not enough to constitute immorality under the Child Custody Act.'" Citing Truitt v Truitt, 172 Mich App 38, 46 (1988). Just because one parent may have a person of the opposite sex spend the night while the children are home does not make them a morally unfit parent warranting a change of custody.

In the past, we have found that some judges have been more vocal than others about whether unmarried overnight guests are allowed when the children are home. Because this case is unpublished, it is not precedentially binding (MCR 7.215(C)) as it is case-specific and not necessarily intended to provide a new rule of law. However, unpublished opinions give us an idea of how the Court of Appeals may rule if presented with the same facts/circumstances, and for that reason, may be persuasive to trial courts.

Either way, it remains true that in the event that both parties agree to such a provision in their judgment of dirvoce, it would be enforceable.

The full opinion can be found here.